- 


r 

)9o* 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


/ 

*? 

■36 

iff 


S°f 


I'- 
ll j 

/37 
/*/3 


/ 


■ 


WJ> 


.-.' 


f2> 


H 


s 


*y 


**r 


[[I 
I 


I 
I 


(X* 


/ 


Hi 


^ 


7/j 


1    /C7 I  ■    1 k  -  ■ 

f 


6 

■ 


\,5*% 


s     , 


31. 


CASES 


ON 


CRIMINAL    LAW 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

WILLIAM  E.  MIKELL, 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  PENNSYLVANIA 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL  EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1908 


Copyright,  1908, 

BY 

WEST  PUBLISHING  COMPANY 
(Mik.  Cr.  Ii.) 


T 
l<?c>8 


g 


TO 

My  Class-Mates 

Archibald  Gilchrist  Singletary  and  Frank  Barron  Grier 

The  one  learned  in  the  Civil  the  other  in  the  Common  Law 

In  appreciation  of  a  long  and  valued  friendship 

(Hi)* 


56V328 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/casesoncriminallOOmike 


THE  AMERICAN  CASEBOOK 
SERIES. 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem ;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory; it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  best  a  summary,  and  a  summary  presup- 
suposes  previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  cate  in  all  its  parts  develops  analysis, 
the  comparison  of   many   cases  establishes  a  general  principle,  and 

(v) 


VI  PREFACE. 

the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  Many  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for' 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  thai  its  present  can  only  be  un- 
tood  through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient   number  of  cases  be  given  under  each  topic 


PREFACE.  Vll 

treated  to  afford  a  basis  for  comparison  and  discrimination;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration :  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly:  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


Vlll  PREFACE. 

If  it  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year ;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Insurance. 

Agency.  International  Law. 

Bills  and  Notes.  Jurisprudence. 

Carriers.  Mortgages. 

Contracts.  Partnership. 

Corporations.  Personal  Property,  including 

Constitutional  Law.  the  Law  of  Bailment. 

Criminal  Law.  r>     i  r>  *.     I lst  Year« 

n  .         1D         ,  Real  Property.  ]  2d     « 

Criminal  Procedure.  /  3d 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 

Evid<  ncc. 

International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 


PREFACE.  II 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  various  case- 
books on  the  indicated  subjects: 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Law. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.    Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Law  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Dean  of  the  University  of  Nebraska  School 
of  Law.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 

Subject,  Trusts. 
Charles  Thaddeus   Terry,   Professor   of  Law,   Columbia  University. 

Subject,  Contracts. 


X  PREFACE. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.  Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan.  Sub- 
ject, Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes. 

Edward  S.  Thurston,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilmore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Partnership. 

Joshua  R.  Clark,  Jr.,  Assistant  Professor  of  Law,  George  Washington 
University.    Subject,  Mortgages. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Administrative  Law. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
itl.    Subject,  Conflict  of  Laws. 

William  C.  Dennis,  Professor  of  Law,  George  Washington  University. 
Subject,  Public  Corporations. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity ;  formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  Law;  General  Jurisprudence  \ 
Equity. 

The  following  books  of  the  Series  are  now  published,  or  in  press: 
Partner  hip,  by  Eugene  A.  Gilmore,  Professor  of  Law,  University  of 
Wisconsin ;  Criminal  Law,  by  Wm.  E.  Mikell,  Professor  of  Law, 
University  of  Pennsylvania;  Damages,  by  Barry  Gilbert,  Professor  of 
Law,  University  of  Illinois;  Conflict  of  Laws,  by  Ernest  G.  Lorenzen, 
Professor  of  Law,  George  Washington  University;  Trusts,  by  Thad- 
deus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 

Jamics  Brown  Scott, 

General  Editor. 
Washington,  d.  c,  November  lc,  1908. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 


SOUECES  OF  THE  CRIMINAL  LAW. 
Section  PaSe 

1.  Criminal  Law  of  the  Federal  Government 1 

2.  Criminal  Law  of  the  States 4 


CHAPTER  II. 

The  Elements  of  "Crime. 

1.  Union  of  Intent  and  Act 12 

2.  Offenses  against  Public  Justice  and  Authority 13 

3.  Offenses  against  the  Law  of  Nations IS 

4.  Offenses  against  Religion 20 

5.  Offenses  against  Public  Peace 20 

6.  Offenses  against  Public  Health 26 

7.  Offenses  against  Trade 27 

8.  Offenses  against  Public  Decency , 30 

9.  Effect  of  Consent,  Condonation,  etc 30 

I.     Consent  of  the  Person  Injured 30 

II.     Consent  of  the  State 40 

III.     Negligence  of  the  Person  Injure'd 40 

IV.     Guilt  of  the  Person  Injured 51 

V.     Condonation  of  the  Person  Injured 53 

VI.     Condonation  of  the  State 50 

VII.     Custom    57 

10.     Effect  of  Coercion 59 

I.     Coverture 59 

II.     Command     62 

III.    Necessity   6~ 

CHAPTER  III. 

The  Criminal  Intent. 

1.  General    Principles T3 

2.  Distinction  between  Intent  and  Motive To 

3.  Constructive  Intent 81 

4.  Specific  Intent 92 

5.  Intent  in  Statutory  Crimes 9" 

0.    Concurrence  of  Several  Intents !14 

CHAPTER  IV. 

Negligence  as  Supplying  Intent 11" 

Mik.Cr.L.  (xi) 


XU  TABLE   OF    CONTENTS. 


CHAPTER  V. 


Intent  as  Affected  by  Conditions. 
Section  Page 

1.  Ignorance  or  Mistake  of  Law 332 

2.  Ignorance  or  Mistake  of  Fact 137 

3.  Infancy  143 

4.  Insanity    145 

5.  Intoxication 1(W 

6.  Incorporation    132 


CHAPTER  VI. 
The  Criminal  Act. 

1.  Concurrence  of  Act  and  Intent 186 

2.  Sufficiency  of  the  Act 188 

I.  Solicitation  1SS 

II.  Attempt   192 

III.     Conspiracy 204 

3.  Authorized  Acts 224 

I.     Acts  in  Furtherance  of  Public  Justice 224 

II.  Acts  in  Furtherance  of  Domestic  Authority 229 

III.  Acts  in  Prevention  of  Crime 234 

IV.  Acts   in    Self-Defense 238 

V.    Acts  in  Defense  of  Others 252 

VI.     Acts  in  Defense  of  Property 256 

VII.    Acts  in  Defense  of  Dwelling 257 


CHAPTER  VII. 
Combinations  of  Persons  in  Crime. 

1.  Principal  in  the  First  Degree -r>~ 

2.  Principal  in  the  Second  Degree 266 

3.  Accessory  Before  the  Fact 278 

4.  Accessory  After  the  Fact 2S3 

5.  Principal  and  Agent 2SS 

CHAPTER  VIII. 
Assault,  Battery  and  Mayhem 291 

CHAPTER  IX. 
False  Imprisonment  and  Kidnapping 315 

CHAPTER  X. 
Abortion    317 

CHAPTER  XI. 
Rape 819 


TABLE   OF    CONTENTS.  XI H 

CHAPTER  XII. 

Homicide. 
Section  Pa&e 

1.  Geneial  Principles 328 

I.     The  Several  Kinds  of  Homicide 328 

II.     The  Subject  of  Homicide 329 

III.     The  Act  Causing  Death •  331 

2.  Murder    3o0 

3.  Statutory  Degrees  of  Murder 360 

4.  Voluntary  Manslaughter 367 

CHAPTER  XIII. 
Larceny. 

1.  Property  the  Subject  of  Larceny 386 

2.  The  Ownership  of  the  Property 400 

3.  The  Caption  and  Asportation 409 

4.  The    Trespass 416 

I.     Possession  Necessary  for  Trespass  to  Attach 416 

II.     Trespass  in  Taking  Possession 420 

III.     Trespass  in  the  Appropriation  of  Lost  Goods 431 

IV.    Trespass  in  the  Appropriation  of  Goods  Delivered  by  the  Owner  441 

A.  When  Delivery  Gives  Possession 441 

B.  Distinction  between  Possession  and  Custody 463 

C.  When  Delivery  Vests  Property 470 

5.  The  Animus  Furandi 486 

6.  Aggravated  Larceny ■ 49c 

I.     Grand   Larceny 490 

II.     Larceny  from  Particular  Places 499 

III.     Robbery   5°° 

CHAPTER  XIV. 
Embezzlement 505 

CHAPTER  XV. 

Obtaining  Property  by  Cheats  and  False  Pretenses. 

1.  General    Principles 510 

2.  The  Property  Obtained 511 

3.  The  Interest  Acquired 512 

4.  The    Pretense 513 

5.  Effectiveness  of  the  Pretense 526 

6.  The  Intent 534 

CHAPTER  XVI. 

Receiving   Stolen  Property. 

1.  The  Subject  of  the  Crime 537 

2.  The  Act  of  Receiving 545 

3.  The  Guilty  Knowledge .' 548 

4.  The    Intent 549 


XI?  TABLE   OF    CONTENTS. 


CHAPTER   XVII. 


BURGLABT. 
Section  Page 

1.  The  Breaking 553 

2.  The  Entry 558 

3.  The    Place 561 


CHAPTER   XVIII. 
Abson    568 

CHAPTER  XIX. 

FOBGERT. 

1.  The  Instrument 572 

2.  The  Act  by  which  the  Forgery  is  Committed 577 

3.  The  Intent 5S2 

CHAPTER  XX. 
IjIbel  585 

CHAPTER  XXI. 

Perjtjbt    592 

Index   ' 599 


TABLE   OF    CASES. 

[CASES  CITED  IN  FOOTNOTES  ABE  INDICATED  BT  ITALICS.      WHERE  SMALL  CAPITALS 
ABE  USED,  THE  CASE  IS  REFERRED  TO  IN   TEXT.] 


Page 

Allen  v.  State 42 

Anderson  v.  Commonwealth 33 

Anonymous 13,  143.  182,  238,  380, 

400,  402,  405,  4G3,  48G,  561,  562 

Arden  v.  State 594 

Bacon's  Case 188 

Bain  v.  State 67 

Banson  v.  Ossley 267 

Bartell  v.  State 39 

Bell  v.  State 30 

Beverley's    Case 145,  1 69 

Bibithe's  Case 282 

Bird  v.  Jones 316 

Boyd  v.  State 231 

Bradley  v.  His  Wife 229 

Brewer  v.  State 66 

Brooks  v.  State 438 

Buckner's  Case 370 

Bush  v.  Commonwealth 343 

Butler  v.  People 346 

Butler's  Case 430 

Canter  v.  State 512 

Carrier's  Case 443 

Carroll  v.  State 259 

Carver  v.  Pierce 388 

Chambless  v.  State 299 

Champer  v.  State 37 

Chapman  v.  State 296 

Cherry's  Case 409 

City  of  Evanston  v.  Myers 47 

Clark  v.  State 196 

Commonwealth  v.  Adams    88 

Commonwealth  v.  Baldwin   578 

Commonwealth  v.  Blanding   587 

Commonwealth  v.  Campbell 346 

Commonwealth  v.  Carr   54 

Commonwealth  v.  Cramer 23 

Commonwealth  v.  Drum   361 

Commonwealth  v.  Eisenhower  . . .  345 

Commonwealth  v.  Haines   21 

Commonwealth  v.  Hutchinson  . .  190 

Commonwealth  v.  McHale    14 

Commonwealth  v.  Moore 61,  350 

Commonwealth  v.  Mosler   150 

Commonwealth  v.  Mosler   375 

Commonwealth  v.  Ryan  42G 


Page 

Commonwealth  v.  St.  John 56 

Commonwealth  v.  Sankey   581 

Commonwealth  v.  Sheriff   208 

Commonwealth  v.  Steimling 397 

Commonwealth  v.  Stevens 288 

Commonwealth  v.  White  426 

Cook's  Case 258 

Cote  v.  Murphy 211 

Cummings  v.  Commonwealth 415 

Custodes  v.  Gwinn 592 

Cutter  v.  State 135 

Davies'  Case 501 

Debbs  v.  State 58 

De  Libellis  Famosis'  Case 585 

Designy's  Case  310 

Dill  v.  State 224 

Don  Moran  v.  People 320 

D.  Williams'  Case 369 

Eversole  v.  Commonicealth 261 

Fain  v.  Commonicealth 122 

Fisherman's  Case 486 

Flanigan  v.  People 173 

Floyd  v.  State 239 

Ford  v.  City  of  Denver 46 

Ford's  Case 2.~>!> 

Foster  v.  Commonicealth 204 

Foster  v.  People 310 

Fowler  v.  Padget 104 

Frank  v.  State 548 

Gettinger  v.  State 415,  492 

Giles  v.  State 5S6 

Godfrey  v.  State 143 

Goodall   v.    State 239 

Gore's  Case 332 

Grey's  Case 230 

Griffith's   Case 266 

Grimm  v.  United  States 48 

Grisham  &  Ligan  v.  State 10 

Guardians  of  the  Poor  v.  Greene  .    4 

Gurneis'  Case 593 

Harman's  Case 501 

llaynes'  Case 400 

Hayicood  v.  State .is? 


Mik.Cr.L. 


(XV) 


XVI 


TABLE    OF   CASES. 


Page 

Henry  v.  State 402 

Hill  v.  State 503 

Hinchcliffe's  Case 256 

Hoskins  v.  Tarrence 3S9 

Hotenia  v.  United  States 148 

Howell's  Case 234 

Hoy  v.  State 240 

Hughes'  Case 502 

Hull's  Case H7 

Isham  v.  State 81 

James  v.  Commonwealth 6 

Keenan  v.  Commonwealth 170 

Knight's  Case US 


Langley  v.  Bradshaw 
Lawrence  v.  State.. . . 

Le  Mott's  Case 

Leonin's   Case 

Leyets'  Case. 


...  446 
.57.  440 
. . .  557 
...  225 
...  74 


Lowe  v.  State 156 

McCord  v.  People 52 

McNaghten'a  Case 145 

Marshall's  Case 169 

Memorandum  62 

Mercersmith  v.  State 273 

Merry  v.   Green 431 

Miers  v.  State 250 

Mills  v.  Commonwealth 317 

Milton  v.   State 1S6 

Mitchum  v.  State 429 

Morrison  v.  Commonwealth 254 

Pennsylvania  v.  Campbell   417 

Pennsylvania  v.  Honeyman 352 

Pennsylvania  v.  Morrison  13 

People  v.  Bird   527 

People  v.  Bntton  247 

P<  ople  v.  Call  467 

People  v.  Cogdell 439 

People  v.  Cummlnga  511 

People  v.  Dnpree  554 

People  v.  Oardner 198 

le  v.  jiiffo  ir>s 

People  v.  r.(  wis  340 

People  v.  Marl  In   51 

/■■  ople  r.  Mather  221 

People  v.  Montarlal    469 

People  v.  Murray 192 

People  v.  Wheeler  523 

People  v.  Whlteman  531 

•le  v.  Wiley   550 

Pew'     C  852 

Plnkard  v.  State iss 

Qulnn  v.  People r>''..". 


Ardley  528 

'      Ast..ri    B06 


Regina  v. 
Begina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina 
Regina 
Regina 
Regina 
Regina 
Regina 
Regina 
Regina  v. 
Regina  v. 
Regina  V. 
Regina  v. 
Regina  v. 
Regina  v. 

Regina   v. 

Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Rei  Ina  v. 
Regina  v. 
Regina  v. 


Paee 

Bailey 495 

Benge 339 

Bennett 33S 

Bryan 516 

Butterfield   286 

Button 530 

Clarence   299 

Coney 37 

Cotesworth  309 

Cruse   61 

Cullum 507 

Doddridge 94 

Dudley  <£•  Stephens 70 

English    526 

Evans 443 

Flattery    326 

Foley   396 

Franklin  86 

Gardner 52S 

Godfrey  493 

Greenwood  338 

Gruncell    539 

Hehir  453 

Hodgson    5S3 

Holloway 386 

Horsey 355 

Jeffries 265 

.  Johnson  &  Jones....     42 

Jones 465,  494,  510,  515 

Kay    421 

Kenny    405 

Latimer 89 

Lee  514 

Longbottom    49 

McGrath  47S 

Machekequonabe  138 

Macleod  122 

Manley 262 

March    292 

Marriott   128 

Masters   420 

Matthews    1S6 

Mawgridge 367 

Middleton  478 

Murphy  515 

Naylor  "■•"•:' 

O'Brien  558 

O'Donnell  492 

Packard 84 

Pembliton 95 

Pocock  131 

Prince    97 

Prlvett  491 

Reed  422 

Reeves 426 

Richards  490 

Russell   571 

Saward   468 

Bchmidl  539 

Senior  77 

Sernfi  356 

Shlckle 387 


TABLE    OF    CASES. 


XV11 


Page 

Regina  v.  Simpson 409 

Regina  v.  Smith 574 

Regina  v.  Stanton 322 

Regina  v.  Stewart 470 

Regina  v.  Stone 535 

Regina  v.  Streeter  543 

Regina  v.  Sutton  187 

Regina  v.  Thomas 4G4 

Regina  v.  Thurborn •  •  434 

Regina  V.  Tolson 73,  101 

Regina  v.  Towers 335 

Regina  v.  Townley 393 

Regina  v.  Tracy  2S0 

Regina  v.  Tyson 59G 

Regina  v.  Wallis   412 

Regina  v.  Watts 389 

Regina  v.  West  .. ; 337 

Regina  v.  White 412 

Regina  v.  Wiley  545 

Regina  v.  Williams  61 

Regina  v.  Williams 477 

Regina  v.  Wilson   472 

Regina  v.  Woodward   546 

Reginald's  Case 320 

Respublica  v.  De  Longchamps 18 

Respublica  v.  McCarty 65 

Respublica  v.  Powell    27 

Respublica  v.  Roberts 8 

Resolution    561 

Rex  v.  Birdseye 498 

Rex  v.  Brain  330 

Rex  v.  Bramley 407 

Rex  v.  Brazier 449 

Rex  v.  Brice 555 

Rex  v.  Bull  418 

Rex  v.  Burton 118 

Rex  v.  Bykerdike 207 

Rex  v.  Cabbage    487 

Rex  v.  Cooper 279 

Rex  v.  Cowell  537 

Rex  v.  Dade   263 

Rex  v.  Darby   13 

Rex  v.  Davis   549,  558 

Rex  v.  Dingley  416 

Rex  v.  D  ixon 61 

Rex  v.  Duffin 92 

Rex  v.  Dyer    538 

Rex  v.  Edward 502 

Rex  v.  Garland    562 

Rex  v.  Gill 309 

Rex  v.  Gillow 115 

Rex  v.  Gowen  570 

Rex  v.  Gray    560 

Rex  v.  Halloway  351 

Rex  v.  Harris    563,  568 

Rex  v.  Hickman 336 

Rex  v.  Higgins 189 

Rex  v.  Holt  93 

Rex  v.  Howell 450 

Rex  v.  Huggins 334 

Rex  v.  Hughes 59 

Rex  v.  Hyams 553 

Mik.Cb.Ii.— b 


Page 

Rex  v.  Jones  497 

Rex  v.  Kelly   279 

Rex  v.  Leigh  442 

Rex  v.  Lewis 556 

Rex  v.  Lockett 577 

Rex  v.  Madox  446 

Rex  v.  Meeres 441 

Rex  v.  Nicholson 473 

Rex  v.  Owen  4'.)'.) 

Rex  v.  Paradice  464 

Rex  v.  Phillips  486 

Rex  v.  Regan   76 

Rex  v.  Rew   333 

Rex  v.  Robson    475 

Rex  v.  Searing  387 

Rex  v.  Seniple 450 

Rex  v.  Sheppard   5S2 

Rex  v.  Smith  22,  505 

Rex  v.  Snowley    506 

Rex  v.  Spencer 513 

Rex  v.  Sullens 419 

Rex  v.  Summers 20 

Rex  v.  Tayler 20 

Rex  v.  Taylor    26,  500 

Rex  v.  Teague    576 

Rex  v.  Thomas  169 

Rex  v.  Thurston    132 

Rex  v.  Vantandillo   26 

Rex  v.  Ward  572 

Rex  v.  W.   D 319 

Rex  v.  Webb  4S9 

Rex  v.  Westbeer 388 

Rex  v.  Wheatly 28 

Rex  v.  Williams 14,  114,  534 

Rex  v.  Willis    408 

Rex  v.  Wright   489 

Riggs  v.  State 63 

Rigmaidon's  Case 119 

Robert's  Case 53,  283 

Roberts'  Case 238 

Rogers  v.  State 181 

Rowe  v.  United  States 242 

Rowe  v.  United  States 245 

Sarah  Connolly's  Case 59 

Saunders'   Case 281 

Schmidt  v.  United  States 75 

Seiler  v.  People 61 

Shannon  v.  Commonwealth 224 

Sikes  v.  State 399 

Simpson  v.  State 202 

Sir     Francis     Blake    Delaval, 

Case  of 34 

Sir  William  Hawksworth 137 

Smith  v.  State 315 

Snell  v.  State 252 

Speiden  v.   State 40 

State  v.  Alexander   414 

State  v.  Allen 276 

State  v.  Beck    36 

State  v.  Boyett 132 

State  v.  Brown 365 


XV111 


TABLE    OF    CASES. 


Page 

State  v.  Buchanan 204 

State  v.  Caveness 548 

State  v.  Crawford 559 

State  v.  Currie 43 

State  v.  Daniel  294 

State  v.  Davis  2S3,  309 

State  v.  Gardner   244 

State  v.  Goff  71 

State  v.  Greer 253 

Slate  v.  Grugin    376 

State  v.  Gut 49 

State  v.  Haab   170 

State  v.  Haines    327 

State  v.  Hardie   II9 

State  v.  Hattaway 593 

State  v.  Hill   371 

State  v.  Houston  61 

State  v.  Hurley    193 

State  v.  Jones  157 

State  v.  Knight 152 

State  v.  Levelle   359 

State  v.  McCants 373 

State  v.  McDonald 137 

State  v.  Ma  Foo 61 

State  v.  Middleton 28 

State  v.  Moore   560 

State  v.  Morgan  256 

State  v.  Nargashian  385 

State  v.  Nash    139 

State  v.  O'Brien 120 

State  v.  Oliver  229 

State  v.  Poynier 269 

State  v.  Pulle  9 

State  v.  Rippeth HI 

State  v.  St.  Clair 546 

State  v.  Sales   204 

State  v.   Scates 343 


Page 

State  v.  Scates 345 

State  v.  Shepabd 322 

State  v.  Shields  326 

State  v.  Skilbrick 476 

State  v.  Sm  ith    228 

State  v.  Spivey 37^> 

State  v.  Stewart 219 

State  v.  Taylor  261 

State  v.  Williams 32 

State  v.  Yanz   382 

Stinson  v.  People 430 

Storey  v.  State 234 

Taylor  v.   State 345 

Thornton  v.  State 267 

Tuberville  v.  Savage 291 

United  States  v.  Ashton   67 

United  States  v.  Holmes 71 

United  States  v.  Hudson 4 

United  States  v.  John    Kelso    Co.  182 

United  States  ».  Moore 593 

United  States  v.  Myers  292 

United  States  v.  Rice 22.". 

United  States  v.  Worrall 1 

Wall's  Case 576 

Ward  v.  People 4°1 

Westrup  v.  Commonwealth 124 

Whitten  v.  State 181 

Wilcox  V.  State 180 

Wilkinson's  Case 409 

Williams  v.  State 53 

Wright's  Case 501,  581 

Yoes  v.  State 12 


"No  department  of  law  can  claim  greater  moral  importance  than 
that  which,  with  the  detail  and  precision  necessary  for  legal  purposes, 
stigmatizes  certain  kinds  of  conduct  as  crimes,  the  commission  of 
which  involves,  if  detected,  indelible  infamy  and  the  loss,  as  the  case 
may  be,  of  life,  property  or  personal  liberty."     1  Stephens'  History 

of  Criminal  Law,  ix. 

$ 

Mik.Cb.L.  (xx)f 


• 


CASES  ON  CRIMINAL  LAW. 


CHAPTER  I. 
SOURCES  OF  THE  CRIMINAL  LAW. 


SECTION  1.— CRIMINAL  LAW  OF  THE  FEDERAL 
GOVERNMENT. 


UNITED  STATES  v.  WORRALL. 

(Circuit  Court  of  United  States,  Pennsylvania  District,  1798.    2  Dall.  384,  Fed. 
" Cas.  NO.  16,766,  1  L.  Ed.  426.) 

The  defendant  was  charged  with  an  attempt  to  bribe  Tench  Coxe, 
the  Commissioner  of  the  Revenue,  the  indictment  containing  two 
counts.     Verdict— Guilty  on  both  counts  of  the  indictment.1 

Dallas,  who  had  declined  speaking  on  the  facts  before  the  jury, 
now  moved  in  arrest  of  judgment. 

Rawle,  District  Attorney,  contra. 

Chase,  Justice.  Do  you  mean,  Mr.  Attorney,  to  support  this  in- 
dictment solely  at  common  law?  If  you  do,  I  have  no  difficulty  upon 
the  subject.    The  indictment  cannot  be  maintained  in  this  court. 

Rawle,  answering  in  the  affirmative,  Chase,  Justice,  stopped  Mr. 
Levy,  who  was  about  to  reply,  in  support  of  the  motion  in  arrest  of 
judgment,  and  delivered  an  opinion  to  the  following  effect : 

Chase,  Justice.  This  is  an  indictment  for  an  offense  highly  in- 
jurious to  morals,  and  deserving  the  severest  punishment;  but,  as 
it  is  an  indictment  at  common  law,  I  dismiss,  at  once,  everything  that 
has  been  said  about  the  Constitution  and  laws  of  the  United  States. 

In  this  country,  every  man  sustains  a  two-fold  political  capacity ; 
one  in  relation  to  the  state,  and  another  in  relation  to  the  United 
States.  In  relation  to  the  state,  he  is  subject  to  various  municipal  reg- 
ulations, founded  upon  the  state  Constitution  and  policy,  which  do 
not  affect  him  in  his  relation  to  the  United  States;  for  the  Con- 
stitution of  the  Union  is  the  source  of  all  the  jurisdiction  of  the  na- 
tional government,  so  that  the  departments  of  the  government  can 
never  assume  any  power  that  is  not  expressly  granted  by  that  instru- 

i  Part  of  this  case  is  omitted. 
Mik.Cb.L.— 1 


2  SOURCES   OF   THE    CRIMINAL   LAW.  (Ch.  1 

ment,  nor  exercise  a  power  in  any  other  manner  than  is  there  pre- 
scribed. Besides  the  particular  cases  which  the  eighth  section  of  the 
first  article  designates,  there  is  a  power  granted  to  Congress  to  create, 
define,  and  punish  crimes  and  offenses,  whenever  they  shall  deem 
ft  necessary  and  proper  by  law  to  do  so  for  effectuating  the  objects  of 
the  government;  and,  although  bribery  is  not  among  the  crimes  and 
offenses  specifically  mentioned,  it  is  certainly  included  in  this  gen- 
eral provision.  The  question,  however,  does  not  arise  about  the 
power;  but  about  the  exercise  of  the  power— whether  the  courts  of 
the  United  States  can  punish  a  man  for  any  act,  before  it  is  declared 
by  a  law  of  the  United  States  to  be  criminal.  Now,  it  appears 
to  my  mind  to  be  as  essential  that  Congress  should  define  the  offenses 
to  be  tried,  and  apportion  the  punishments  to  be  inflicted,  as  that 
they  should  erect  courts  to  try  the  criminal,  or  to  pronounce  a  sen- 
tence on  conviction. 

It  is  attempted,  however,  to  supply  the  silence  of  the  Constitution 
and  statutes  of  the  Union  by  resorting  to  the  common  law  for  a  defini- 
tion and  punishment  of  the  offense  which  has  been  committed;  but, 
in  my  opinion,  the  United  States,  as  a  federal  government,  have 
no  common  law,  and,  consequently,  no  indictment  can  be  maintained 
in  their  courts  for  offenses  merely  at  the  common  law.  If,  indeed, 
the  United  States  can  be  supposed,  for  a  moment,  to  have  a  com- 
mon law,  it  must,  I  presume,  be  that  of  England;  and  yet  it  is  im- 
possible to  trace  when  or  how  the  system  was  adopted  or  introduced. 
With  respect  to  the  individual  states,  the  difficulty  does  not  occur. 
When  the  American  colonies  were  first  settled  by  our  ancestors,  it 
was  held,  as  well  by  the  settlers  as  by  the  judges  and  lawyers  of 
England,  that  they  brought  hither,  as  a  birthright  and  inheritance, 
so  much  of  the  common  law  as  was  applicable  to  their  local  situation 
and  change  of  circumstances.  But  each  colony  judged  for  itself 
what  parts  of  the  common  law  were  applicable  to  its  new  condition, 
and  in  various  modes,  by  legislative  acts,  by  judicial  decisions,  or  by 

nt  usage,  adopted  some  parts  and  rejected  others.     Hence  he 
who  shall  travel  through  the  different  states  will  soon  discover  that 

•.hole  of  the  common  law  of  England  has  been  nowhere  intro- 
ome  states  have  rejected  what  others  have  adopted,  and 
thai  in   short,  a   greal    and  essential   diversity   in  the   sub- 

to  which  the  common  law  is  applied,  as  well  as  in  the  extent 
i>\  its  application.     The  common  law,  therefore,  of  one  state,  is  not 

ommon  law  of  another,  bu1   the  common  law  of  England  is  the 

f  'I'll  st;it'-.  so  fif  as  '.nli  state  lias  adopted  it;   and  it  results 

from  that  position  ted  with  the  judicial  act,  that  the  common 

law  will  always  apply  to   -nits  between  citizen  and  citizen,  whether 

they  arc  instituted  in  a  federal  or  state  court. 

But   the  (pic  Hon    recurs,   when   and   how  have  the  courts  of   the 
acquired  a  common  law  jurisdiction   in   criminal  eases? 

The  United  •  the  common  law  themselves  before 


Sec.  1)  CRIMINAL   LAW   OF   THE    FEDERAL   GOVERNMENT.  3 

they  can  communicate  it  to  their  judicial  agents.  Now,  the  United 
States  did  not  bring  it  with  them  from  England,  the  Constitution 
does  not  create  it,  and  no  act  of  Congress  has  assumed  it.  Besides, 
what  is  the  common  law  to  which  we  are  referred?  Is  it  the  common 
law  entire,  as  it  exists  in  England,  or  modified,  as  it  exists  in  some 
of  the  states;  and  of  the  various  modifications  which  are  we  to 
select,  the  system  of  Georgia  or  New  Hampshire,  of  Pennsylvania  or 
Connecticut? 

Upon  the  whole,  it  may  be  a  defect  in  our  political  institutions, 
it  may  be  an  inconvenience  in  the  administration  of  justice,  that  the 
common-law  authority,  relating  to  crimes  and  punishments,  has  not 
been  conferred  upon  the  government  of  the  United  States,  which 
is  a  government  in  other  respects  also  of  a  limited  jurisdiction;  but 
judges  cannot  remedy  political  imperfections,  nor  supply  any  leg- 
islative omission.  I  will  not  say  whether  the  offense  is  at  this  time 
cognizable  in  a  state  court.  But  ^certainly  Congress  might  have  pro- 
vided by  law  for  the  present  case,  as  they  have  provided  for  other 
cases  of  a  similar  nature ;  and  yet  if  Congress  had  ever  declared 
and  defined  the  offense,  without  prescribing  a  punishment,  I  should 
still  have  thought  it  improper  to  exercise  a  discretion  upon  that 
part  of  the  subject. 

Peters,  Justice.  Whenever  a  government  has  been  established, 
I  have  always  supposed  that  a  power  to  preserve  itself  was  a  neces- 
sary and  an  inseparable  concomitant.  But  the  existence  of  the  fed- 
eral government  would  be  precarious,  it  could  no  longer  be  called  an 
independent  government,  if  for  the  punishment  of  offenses  of  this 
nature,  tending  to  obstruct  and  pervert  the  administration  of  its  af- 
fairs, an  appeal  must  be  made  to  the  state  tribunals,  or  the  offenders 
must  escape  with  absolute  impunity. 

The  power  to  punish  misdemeanors  is  originally  and  strictly  a 
common-law  power,  of  which,  I  think,  the  United  States  are  con- 
stitutionally possessed.  It  might  have  been  exercised  by  Congress 
in  the  form  of  a  legislative  act ;  but  it  may,  also,  in  my  opinion,  be 
enforced  in  a  course  of  judicial  proceeding.  Whenever  an  offense 
aims  at  the  subversion  of  any  federal  institution,  or  at  the  corrup- 
tion of  its  public  officers,  it  is  an  offense  against  the  well-being  of 
the  United  States ;  from  its  very  nature,  it  is  cognizable  under  their 
authority;  and,  consequently,  it  is  within  the  jurisdiction  of  this  court, 
by  virtue  of  the  eleventh  section  of  the  judicial  act. 

The  court  being  divided  in  opinion,  it  became  a  doubt  whether 
sentence  could  be  pronounced  upon  the  defendant ;  and  a  wish  was 
expressed  by  the  judges  and  the  attorney  of  the  district  that  the 
case  might  be  put  into  such  a  form  as  would  admit  of  obtaining  the 
ultimate  decision  of  the  Supreme  Court  upon  the  important  prin- 
ciple of  the  discussion.  But  the  counsel  for  the  prisoner  did  not 
think  themselves  authorized  to  enter  into  a  compromise  of  that  na- 
ture.    The  court  after  a  short  consultation,   and   declaring  that   the 


4  SOURCES   OF   THE   CRIMINAL   LAW.  (Ch.  1 

sentence  was  mitigated  in  consideration  of  the  defendant's  circum- 
stances, proceeded  to  adjudge  that  the  defendant  be  imprisoned  for 
three  months,  that  he  pay  a  fine  of  $200,  and  that  he  stand  commit- 
ted till  this  sentence  be  complied  with  and  the  costs  of  prosecution 
paid.2 


SECTION  2.— CRIMINAL  LAW  OF  THE  STATES. 


GUARDIANS  OF  THE  POOR  v.  GREENE. 
(Supreme  Court  of  Pennsylvania,  1813.    5  Bin.  554.) 

This  was  an  action  of  debt  in  the  common  pleas  of  Philadelphia 
county,  to  recover  from  the  defendant  the  penalty  of  $60  prescribed 
by  the  act  of  the  29th  of  March,  1S03  (4  Smith's  Laws,  p.  50),  for 
refusing  to  take  the  oath  of  office  of  a  guardian  of  the  poor  for  the 
township  of  the  Northern  Liberties,  or  to  undertake  the  duties  of 
that  office. 

The  cause  was  decided  below  in  favor  of  the  defendant  in  error. 

Tilghman,  C.  J.3  The  question  in  this  case  is  whether  the  de- 
fendant in  error,  an  ordained  deacon  and  an  elder  in  the  Methodist 
Kpi.-copal  Church,  is  subject  to  the  penalties  of  the  act  of  the  20th 
of  March,  1803  (4  Smith's  Laws,  p.  50),  for  not  serving  in  the  office 
of  a  guardian  of  the  poor,  to  which  he  was  elected.  There  is  no 
9oud1  but  the  commonwealth  has  a  right  to  insist  on  the  service  of 
lyery  member  of  the  community  in  any  capacity  in  which  it  may  be 
thought  proper  to  exact  it.  But,  unless  the  intention  is  clearly  ex- 
1.  it  is  nol  fo  be  supposed  that  services  were  meant  to  be  ex- 
acted  contrary   to  ancient   usage,   and   involving  incompatible   duties. 

a  in  1812  the  Supreme  Court  of  the  United  States,  in  U.  S.  v.  Hudson.  7 

Crnnrh, ::-.  •".  L.  Ed  259,  decided,  wlthoul  argument,  that  while  certain  implied 

•  to  flne  for  contempt,  Imprison  for  contumacy,  to  enforce  the  observance 

lilted   to  the  federal  courts  from  the  nature  of 

their  Institution,  the  exercise  of  criminal   jurisdiction   In  common-law  cases 

no!  within  their  implied  powers,     in   1816  the  same  poinl  arose  In  U.  S. 

e    l  Wheat  415,  I   i.    Bd.   124.    Story,  .1..  said  he  .lid  nol  consider 

tin-  question  Bettled  by  O.  8.  v.   Hudson.     Washington   and    Livingston,  J.I.. 

d  Johnson,  J.,  considered  the  question  no  longer 
.■in  open  "lie;    imt  tii.-  Attorney  General  refusing  to  argue  the  point,  and  no 
i  appearing  for  n-  the  Courl  would  not   review,  not-  draw 

In  doubt  the  decision  in  D.  S,  v.  Hudson. 

been   frequently  relied  on  as  establishing  the 
\    Brltton,   108  p.  s.   199,  2  Sup.  Ct.  531,  27  L.  Ed.  698 
I.   104  (1892).     See  for  the  Distrlcl  of  Co- 
lumbia, Tyner  v.  1  >.  D.  <         i  (1904). 

i,,  i  .  Hempst.  181,  Fed.  Cas.  No.  16,115,  it  was  held  thai  the 

l>e  Circuit   Courl  jurisdiction   In  murder  did  not   em- 
•   the  crlmi  before  the  fad  to  murder. 

rt   "f  ti pinion  of  Tilghman,  C.  J.,  and   the  concurring  opinion  of 

'  of  Bra.  .1  ,  are  omitted 


-puJlnA^\ 


Sec.  2)  CRIMINAL  LAW  OF  THE  STATES.  5 

Every  country  has  its  common  law.  Ours  is  composed  partly  of  the 
common  law  of  England,  and  partly  of  our  own  usages.  When  our 
ancestors  emigrated  from  England,  they  took  with  them  such  of  the 
English  principles  as  were  convenient  for  the  situation  in  which  they 
were  about  to  place  themselves.  It  required  time  and  experience  to 
ascertain  how  much  of  the  English  law  would  be  suitable  to  this  coun- 
try. By  degrees,  as  circumstances  demanded,  we  adopted  the  English 
usages,  or  substituted  others  better  suited  to  our  wants,  till  at  length, 
before  the  time  of  the  Revolution,  we  had  formed  a  system  of  our 
own,  founded  in  general  on  the  English  Constitution,  but  not  with- 
out considerable  variations.  In  nothing  was  this  variation  greater 
than  on  the  subject  of  religious  establishments.  The  minds  of  Wil- 
liam Penn  and  his  followers  would  have  revolted  at  the  idea  of  an  es- 
tablished church.  Liberty  to  all,  but  preference  to  none ;  this  has  been 
our  principle,  and  this  our  practice.  But  although  we  have  had  no 
established  church,  yet  we  have  not  been  wanting  in  that  respect,  nor 
niggards  of  those  privileges,  which  seem  proper  for  the  clergy  of  all  re- 
ligious denominations.  It  has  not  been  our  custom  to  require  the  serv- 
ices of  clergymen  in  the  offices  of  constables,  overseers  of  the  high- 
ways or  of  the  poor,  jurors,  or  others  of  a  similar  nature.  Not  that 
this  exemption  is  founded  on  any  act  of  assembly,  but  on  a  universal 
tacit  consent.  In  the  nature  of  things,  it  seems  fit  that  those  persons 
who  devote  their  lives  to  the  service  of  God  and  the  religious  in- 
struction of  their  brethren  should  be  freed  from  the  burden  of  tem- 
poral offices,  which  would  but  distract  their  attention  and  may  be  bet- 
ter filled  by  others.  This  sentiment  is  not  peculiar  to  us.  We  find  it 
in  the  English  common  law,  though  from  motives  of  policy  restrict- 
ed, perhaps,  to  the  established  church.  It  is  said  by  Lord  Coke,  in 
2  Inst.  3,  4,  to  be  a  principle  of  the  ancient  common  law  that  the  clergy 
shall  not  be  implicated  in  secular  business,  and  that  if  a  man  holding 
lands,  by  virtue  of  which  he  is  bound  to  serve  in  temporal  offices,  be- 
come an  ecclesiastical  person  in  holy  orders,  he  ought  not  to  be  elect- 
ed to  such  office,  and,  if  he  is,  he  may  have  the  king's  writ  for  his  dis- 
charge. And  in  the  Register  of  Writs,  187,  and  Fitz.  N.  B.  175,  the 
form  of  the  writ  is  to  be  found.  It__appears,  then,  that  what  the  Eng- 
lish have  applied  to  their  established  church  we,  in  conformity  to  our 
principles  of  religious  liberty,  have  granted  to  the  clergy  of  all  pro- 
fessions. Nor  is  the  privilege  confined  to  common-law  offices.  It  is 
proved  by  the  cases  cited  in  the  argument  to  which  I  refer"  that  the 
same  construction  has  been  held  with  respect  to  offices  created  by 
statute,  in  which  there  is  no  express  exemption  of  the  clergy.  The 
rule  of  construction  is  this :  Unless  the  clergy  are  mentioned,  it  shall 
not  be  supposed  that  it  was  intended  to  include  them.  If  we  apply  this 
rule  to  the  act  of  assembly  in  question,  the  case  will  be  easily  decided. 
The  act  directs  that  a  certain  number  of  substantial  householders  shall 
be  elected,  but  is  altogether  silent  as  to  any  exemptions.  We  must 
oresume.  then,  that  it  was  not  intended  to  include  persons  who,  from 


6  SOURCES    OF   THE    CRIMINAL   LAW.  (Ch.  1 

ancient  usage,  were  exempt  from  this  kind  of  service,  or  who  held 
other  offices  incompatible  with  the  duty  of  a  guardian  of  the  poor. 
Without  such  presumption,  how  is  it  that  judges  and  attorneys  at  law 
are  privileged?  They  have  no  express  privilege  by  that  or  any  other 
law,  but  in  sound  construction  they  are  excepted  from  the  general 
words  of  the  act. 

My  opinion  is,  that  the  court  of  common  pleas  were  right  in  their 
construction  of  the  act  of  assembly,  and  therefore  their  judgment 
should  be  affirmed. 


JAMES  v.  COMMONWEALTH. 
(Supreme  Court  of  Pennsylvania,  1825.    12  Serg.  &  R.  220.) 

This  was  a  writ  of  error  to  the  court  of  quarter  sessions  of  Phila- 
delphia county,  at  the  September  sessions  of  which  court  Nancy 
James,  the  plaintiff  in  error,  had  been  convicted  of  being  a  common 
scold,  and  thereupon,  on  the  29th  day  of  October,  1824,  adjudged 
"to  be  placed  in  a  certain  engine  of  correction,  called  a  clicking  or 
ducking  stool,  and,  being  placed  therein,  to  be  plunged  three  times 
into  the  water,  to  pay  the  costs  of  prosecution,  and  stand  committed 
till  the  sentence  is  complied  with."  The  error  assigned  was  "that 
this  judgment  is  illegal." 

Duncan,  J.1  This  sentence,  we  are  informed,  has  created  much 
ferment  and  excitement  in  the  public  mind.  It  is  considered  as  a 
cruel,  unusual,  unnatural,  and  ludicrous  judgment.  But  whatever 
prejudices  may  exist  against  it,  still,  if  it  be  the  law  of  the  land,  the 
court  must  pronounce  judgment  for  it.  But  as  it  is  revolting  to 
humanity,  and  is  of  that  description  that  only  could  have  been  in- 
vented in  an  age  of  barbarism,  we  ought  to  be  well  persuaded,  either 
that  it  is  the  appropriate  judgment  of  the  common  law,  or  is  inflicted 
by  some  positive  law,  and  that  that  common  law  or  statutory  provi- 
sion has  been  adopted  here  and  is  now  in  force. 

The  late  Judge  Ingersoll,  a  name  respected  and  honored,  when 
Attorney  General,  in  his  report  to  the  Legislature  in  1813,  stated 
that  by  several  acts  of  assembly  "cruel  and  unnatural  punishments, 
which  tended  only  to  harden  and  confirm  the  criminal,  had  been 
abolished  for  all  inferior  offenses."  The  sanguinary  code  of  England 
could  be  no  favorite  with  William  Penn  and  his  followers,  who  fled 
from  persecution.  Cruel  punishments  were  not  likely  to  be  intro- 
duced by  a  society  who  denied  the  right  to  touch  the  life  of  man. 
for  the  m  i  I  atrocious  crime  For,  had  they  brought  with  them 
the  whole  body  of  the  British  criminal  law,  then  we  should  have  had 
the  appeal   of  death,  and   the  impious  spectacle  of  trial  by  battle  in 

»  Only  extract!  from  the  opinion  are  printed. 


Sec.  2)  CRIMINAL   LAW    OF   THE    STATES.  7 

a  Quaker  colony;  and  it  is  worthy  of  remembrance  that  the  charter 
of  William  Penn  empowered  him,  with  the  advice  and  assent  of  the 
freemen,  to  make  laws  for  their  own  government,  and  until  this  was 
done  the  laws  of  England  in  respect  to  real  and  personal  property,  and 
as  to  felonies,  were  to  continue  the  same.  Thus,  as  to  misdemeanors, 
the  common-law  punishments  were  not  brought  over  by  the  first 
settlers. 

The  first  body  of  laws  (called  the  "great  body  of  laws")  contains 
an  act,  passed  in  1682,  against  scolding,  imposing  the  penalty,  five 
shillings,  or  three  days'  confinement  at  hard  labor.  Chapter  34. 
The  second  act,  in  1683  (chapter  12),  inflicts  the  same  penalty,  or 
standing  one  hour  in  the  most  public  place,  with  a  gag  in  the  mouth ; 
and  11  years  after  this,  in  1693,  in  the  petition  of  right  to  Gov. 
Fletcher,  they  state  that  the  laws  contained  in  that  list  had  not  been 
repealed  by  the  king  in  council,  and  that  it  had  pleased  the  king 
and  queen  so  tenderly  to  regard  their  happy  government  as  to  con- 
firm their  laws  and  constitutions,  so  fitly  accommodated  to  their  cir- 
cumstances, and  conclude  by  earnestly  desiring  him  to  govern  them 
according  to  these  laws,  including  the  laws  against  scolding;  and 
the  Governor  commanded  them  to  be  enforced.  These  acts  con- 
tinued in  force  until  1770,  when  another  act  against  scolding  passed, 
inflicting  the  same  penalty,  of  imprisonment  five  days  at  hard  labor, 
or  to  be  gagged  and  stand  at  some  convenient  place,  at  the  discre- 
tion of  the  magistrate.  The  act  of  1770  was  repealed  by  the  queen 
in  council,  but  I  have  not  been  able  to  find  the  repeal  of  the  acts  of 
16S2  and  1683.  It  seems  to  have  been  the  opinion  of  the  late  Judge 
Bradford  that  all  in  the  great  body  of  laws  was  repealed,  and  I  would 
not  venture  totally  to  dissent  from  so  high  an  authority,  though  I 
must  confess  I  think  this  very  doubtful.  Nor  do  I  see  how,  con- 
sistently with  the  charter,  this  could  otherwise  be  repealed  than  by 
act  of  assembly.  If  they  were  not  directly  repealed,  they  were  not 
virtually  repealed  by  the  repeal  of  the  act  of  1770.  Whatever  be 
the  fact,  the  conclusion  is  the  same — that  the  common-law  punish- 
ment of  ducking  was  not  received  nor  embodied  by  usage,  so  as  to 
become  a  part  of  the  common  law  of  Pennsylvania.  It  was  rejected, 
as  not  accommodated  to  the  circumstances  of  the  country,  and  against 
all  the  notions  of  punishment  entertained  by  this  primitive  and  hu- 
mane community;  and,  though  they  adopted  the  common-law  doc- 
trines as  to  inferior  offenses,  yet  they  did  not  follow  their  punish- 
ments. One  remarkable  instance  I  will  notice:  A  gross  libel  in 
England  was  sometimes  punished  by  the  pillory.  I  believe  Mr. 
Prynne  lost  both  his  ears.  Though  the  offense  is  the  same  here, 
vet  the  sentence  is  very  different.  It  is  not  true  that  our  ancestors 
brought  with  them  all  the  common-law  offenses;  for  instance,  that 
of  champerty  and  maintenance  this  court  decided  in  Stoever  v.  Whit- 
man's Lessee,  6  Bin.  416,  did  not  exist  here.  I  do  not  find  the  rule 
on  this  subject  more  satisfactorily  laid  down  anywhere  than  by  the 


8  SOURCES   OF   THE    CRIMINAL   LAW.  (Ch.  1 

Chief  Justice,  in  Guardians  of  the  Poor  of  Philadelphia  v.  Greene, 
5  Bin.  558. 

This  is  a  very  different  question  from  the  common-law  rules  of 
real  and  personal  property — the  modes  of  acquisition  and  alienation 
of  estates.  For,  although  the  reasons  of  many  of  those  rules  have 
ceased,  yet  it  might  be  dangerous,  on  that  account,  to  abolish  them, 
as  it  would  lessen  the  security  of  property  of  titles  to  land,  which 
should  always  be  firm  and  stable;  and  by  the  charter  they  were  to 
remain  the  same  as  in  England,  except  when  altered  by  the  repre- 
sentatives of  the  people.  But  I  am  far  from  professing  the  same 
reverence  for  all  the  degrading  and  ludicrous  punishments  of  the 
early  days  of  the  common  law.  I  am  far  from  thinking  that  this  is  an 
unbroken  pillar  of  the  common  law,  or  that  to  remove  this  rubbish 
would  impair  a  structure  which  no  man  can  admire  more  than  I  do. 
But  I  must  confess  I  am  not  so  idolatrous  a  worshipper  as  to  tie  my- 
self to  the  tail  of  this  dung  cart  of  the  common  law.  *  *  *  The 
courts  of  our  sister  states  of  New  York  and  Massachusetts,  governed 
by  the  same  common  law  as  we  are,  have  declared  that  this  strange 
and  ludicrous  punishment  no  longer  exists  with  them. 

In  considering  this  question  I  own  I  have  some  hesitation  in  de- 
ciding whether  the  offense  of  communis  vexatrix  exists  as  indictable, 
but  I  have  acceded  to  the  opinion  of  the  Chief  Justice  and  my  Broth- 
er Gibson.  It  is  now  to  be  considered  as  indictable  and  punishable 
as  a  common  nuisance,  by  fine,  or  by  fine  and  imprisonment,  at  the 
discretion  of  the  court,  the  acts  of  assembly  being  obsolete,  and  the 
common-law  punishment  of  ducking  not  being  received  here;  and 
I  join  in  the  hope  of  a  learned  antiquarian  and  jurist  of  our  own 
country  "that  we  shall  hereafter  hear  nothing  of  the  ducking  stool, 
or  other  remains  of  the  customs  of  barbarous  ages."  Duponceau  on 
Jurisdiction,  96.  It  is  therefore  the  opinion  of  the  court  that  the 
judgment  of  the  court  of  quarter  sessions  be  reversed. 

Judgment  reversed. 

Per  Curiam  in  RESPUBL-ICA  v.  ROBERTS.  1  Yeates,  6  (1701).  The 
Blngle  question  is  whether  an  unmarried  man  may  be  guilty  of  adultery  un- 
der  the  ad  ><f  assembly. 

Bad  tli"  case  been  res  Integra,  the  decision  of  the  court  might  be  different 
from  \\int  it  now  is.  it  is  true  that  practice  sub  silentlo  will  not  make  the 
law,  but  It  Is  Btrong  evidence  of  what  the  law  is.  It  having  been  the  constant 
practice  to  proceed  against  unmarried  persons  for  fornication,  though  they 
may  have  been  guilty  of  criminal  conversation  with  married  persons,  we  will 
not  exaggerate  the  offense,  nor  carry  it  further  than  our  predecessors  have 
done. 


Sec.  2)  CRIMINAL   LAW    OF    THE    STATES.  9 

STATE  v.   PULLE. 

(Supreme  Court  of  Minnesota,  ISGG.     12  Minn.  164,  [Gil.  99].) 

Wilson,  C.  J.1  The  common  law,  so  far  as  it  is  applicable  to  our 
situation  and  government,  is,  as  a  general  rule,  the  law  of  this  coun- 
try. Every  state,  with  perhaps  one  exception,  has  adopted  it,  either 
tacitly  or  by  express  statutory  enactment.  See  1  Kent's  Commenta- 
ries, 470^73,  note,  and  cases  in  note.  That  it  is  the  law  of  this  state, 
controlling  both  the  rights  and  the  remedies  of  parties  in  actions  be- 
tween individuals,  either  on  a  contract  or  for  a  tort,  cannot  be  doubt- 
ed, for  the  courts  have  recognized  and  acted  on  this  fact  ever  since 
the  organization  of  our  territorial  government,  and  we  find  no  evi- 
dence which  satisfies  us  that  either  the  state  or  territory  intended  to 
repudiate  the  common  law  as  a  source  of  jurisdiction  in  either  crimi- 
nal or  civil  cases.  -  It  having  been  adopted  in  civil  cases,  the  presump- 
tion certainly  is  that  it  was  adopted  as  an  entirety,  so  far  as  it  is  not 
inconsistent  with  our  circumstances,  or  statutory  or  constitutional  law. 
Nor  do  the  laws  in  force  in  Wisconsin  Territory  at  the  date  of  the 
admission  of  the  state  of  Wisconsin  (which,  by  our  organic  act  were 
declared  to  be  valid  and  operative  in  Minnesota  Terrritory)  rebut  this 
presumption.  There  is  nothing  in  these  laws  which  shows  that  the 
territory  of  Wisconsin  abrogated  or  repealed  the  common  law  as  to 
crimes,  but,  on  the  contrary,  we  think  they  show  that  it  was  recog- 
nized and  adopted  in  that  territory.  That  our  statutes  expressly  abol- 
ish common-law  offenses  is  not  pretended.  A  statute  which  is  clear- 
ly repugnant  to  the  common  law  must  be  held  as  repealing  it,  for 
the  last  expression  of  the  legislative  will  must  prevail;  or  we  may 
admit,  for  the  purposes  of  this  case,  that  when  a  new  statute  covers 
the  whole  ground  occupied  by  a  previous  one,  or  by  the  common  law, 
it  repeals  by  implication  the  prior  law,  though  there  is  no  repugnancy. 
Beyond  this  the  authorities  do  not  go  in  sustaining  a  repeal  of  the 
common  law  by  implication.  On,  the  contrary,  it  is  well  settled  that, 
where  a  statute  does  not  especially  repeal  or  cover  the  whole  ground 
occupied  by  the  common  law,  it  repeals  it  only-  when,  and  so  far  as, 
directly  and  irreconcilably  opposed  in  terms.  See  1  Bish.  Cr.  Law 
(3d  Ed.)  §§  195  to  200,  and  cases  cited  in  notes  to  said  sections. 

Our  statutes  fall  far  short  of  covering  the  whole  field  of  common- 
law  crimes.  It  is  not  pretended  that  conspiracy  is,  by  them,  made  a 
crime,  and  we  think  it  very  clear  that  libel  is  not,  and  many  other  in- 
stances might  be  added.  We  think,  therefore,  that  they  do  not,  by  im- 
plication, abolish  these  crimes.  But,  further  than  this,  we  think  our 
statutes  clearly  recognize  the  existence  of  common-law  offenses.  Sec- 
tion 2,  c.  87,  Comp.  St.  1849-1858,  reads  as  follows:  "*  *  * 
Crimes  and  public  offenses  and  criminal  proceedings  are  modified  as 
prescribed  in  these  statutes."     The  Revised  Statutes  were  adopted  in 

i  The  opinion  only  is  printed. 


10  SOURCES    OF   THE    CRIMINAL   LAW.  (Ch.  1 

1851,  and  the  language  above  quoted  was  added  as  an  amendment  in 

1852.  It  is  perhaps  true  that  this  amendment  did  not  change  the 
meaning  of  the  statutes;  but  legislators  frequently,  and  properly, 
make  use  of  language  which,  strictly  speaking,  is  unnecessary,  out  of 
abundant  caution,  and  for  the  purpose  of  making  clear  what  other- 
wise might,  in  the  minds  of  some,  admit  of  doubt.  We  think,  in  this 
view,  the  Legislature  must  have  used  the  language  above  quoted,  to 
show  that  our  statutes  as  to  crimes  were  intended  merely  as  a  modi- 
fication, and  not  as  an  entire  repeal  or  abrogation,  of  the  common  law. 
This  seems  to  us  the  fair  and  natural  meaning  of  the  language,  and 
any  other  construction  suggested  seems  forced  and  unauthorized. 
Section  34  of  chapter  90  of  said  Statutes  reads:  "Every  person  who 
shall  be  convicted  of  any  gross  fraud  or  cheat,  at  common  law,  shall 
be  punished,"  etc.  Section  5,  c.  98,  Id.,  reads :  "Every  person  who 
shall  become  an  accessory  after  the  fact,  to  any  felony,  either  by  com- 
mon law,  or  by  any  statute  made,  or  which  shall  hereafter  be  made, 
may  be  indicted,"  etc.  Our  statutes  in  no  place  declare  that  any  act 
shall  constitute  the  crime  of  libel,  or  that  such  crime  shall  be  punished, 
yet  they  provide  as  to  what  evidence  may  be  given,  and  as  to  the  form 
and  substance  of  the  indictment  in  prosecutions  for  such  crime.  Comp. 
St.  1S49-1858,  p.  734,  c.  98,  §  6 ;  Id.  p.  756,  c.  105,  §  3;  Id.  p.  760, 
c.  105,  §  17.  These  sections  are  an  admission  or  recognition  by  the 
Legislature  of  the  fact  that  common-law  offenses  may  be  punished  in 
this  state.  This  conclusion  is  in  accordance  with  the  views  enter- 
tained by  the  courts  generally  throughout  the  United  States.  See 
authorities  cited  in  note  to  1  Bishop,  Cr.  Law  (3d  Ed.)  §  36. 

If  common-law  crimes  are  suspended  or  abolished  by  our  statutes, 
so  are  "criminal  proceedings" ;  but  the  Legislature,  by  the  express 
and  particular  repeal  of  certain  criminal  practice  and  proceeding 
(Comp.  St.  1849-1858,  p.  735,  c.  98,  §  14;  Id.  p.  785,  c.  118,  §  37), 
clearly  indicate  that  they  did  not  consider  the  general  statute  as  affect- 
ing such  repeal.  The  gist  of  this  offense  is  the  unlawful  confedera- 
tion, and  it  is  not  necessary  to  prove  an  overt  act  in  pursuance  of  it. 
Commonwealth  v.  Judd,  2  Mass.  329,  3  Am.  Dec.  54.  The  exceptions 
are  overruled. 

I '.i  iky,  J.  I  dissent.  In  my  judgment  no  offenses  at  common  law 
are  offenses  in  this  state,  except  such  as  are  specifically  recognized  by 
our  statutes.2 

i  The  common  law,  In  so  far  ns  It  determines  what  acta  nre  crimes,  Is  not 
in  force  in  the  following  states:  Indiana  -.Tunes  v.  State,  r>«t  in<i.  229  (1877)! 
[owa  i :-'■■■  \  Carter,  10  Iowa,  460  (1860);  Kansas— State  v.  Zoung,  55  Kan. 
349,  W  Pac.  659  (1895);  Michigan  -In  re  Lamphere,  81  Mich.  105,  27  N.  W. 
882  (1886);  Nebraska  State  v.  !><•  Wolfe,  <;t  Neb.  321,  93  N.  W.  Tie  (1903); 
Ohio— Smith  v.  State,  12  Ohio  St.  466,  80  Am.  Dec.  355  (1861);  Oregon  -State 
ant,  18  Or.  115,  9  Pac.  55  (1885). 

Ecclesiastical  Offenses,  if  is  s:ii<i  in  Grlsham  A  Liu'nn  v.  State,  2  Yerg. 
(Tenn.)  565  (1881);  "Bu1  i«'t  li  be  understood  that  the  temporal  courts  In 
England  have  no  cognizance  of  the  crime  of  adultery  or  fornication,  when 
■ecrel  and  private  and  confined  to  single  Instances,  y<'t  they  are  not  thereby 


Sec.  2)  CRIMINAL  LAW  OF  THE  STATES.  11 

legalized,  or  rendered  dispunishable,  as  not  being  offenses.  They  continue 
offenses  there  still,  but  their  cognizance  is  transferred  and  assigned  to  the 
spiritual  court,  who  punish  according  to  the  rules  of  the  canon  law.  It  cannot 
follow  as  a  consequence  that  an  offense  which  is  common  to  both  the  law  of 
England  and  this  state,  and  is  animadverted  upon  by  the  law  of  England 
and  punished  by  the  spiritual  court  there,  shall  escape  the  like  animadversion 
of  the  law  and  punishment  here,  because  we  have  not  a  spiritual  court;  but 
it  rather  follows,  from  analogy,  that  our  county  courts  of  pleas  and  quarter 
sessions  have  the  jurisdiction  in  these  matters,  as  we  find  that  matters,  the 
proper  tribunal  of  which  was  the  spiritual  court  in  England,  are  in  this  state, 
when  not  repugnant  to  our  Constitution  and  form  of  government,  assigned 
to  the  county  courts,  as  the  probate  of  wills  and  testaments,  the  granting  of 
letters  of  administration,  etc." 

The  great  majority  of  the  authorities,  however,  hold  that  offenses  cogniz- 
able only  in  the  spiritual  courts  in  England  cannot  be  punished  here  except 
by  statute. 

A  , 

cLL'h  i'' 

I 

I         \   "*+* 


12  THE    ELEMENTS    OF   CRIME.  (Ch.  2 

CHAPTER  II. 
THE  ELEMENTS  OF  CRIME. 


SECTION  1.— UNION  OF  INTENT  AND  ACT. 


YOES   v.   STATE. 

(Supreme  Court  of  Arkansas,  1848.    9  Ark.  42.) 

Enos  Yoes  was  indicted  in  Washington  circuit  court  for  an  as- 
sault and  battery  upon  James  C.  Hughes.  He  was  tried  on  the  plea 
of  not  guilty,  at  the  May  term,  1847,  before  Hon.  Wm.  W.  Floyd, 
Judge,  convicted,  and  fined  $10. x 

Johnson,  C.  J.  The  circuit  court  manifestly  erred  in  giving  the 
first  instruction  asked  by  the  state.  The  instruction  is  that,  if  the 
jury  believe  from  the  evidence  that  the  defendant  went  to  the  meeting- 
house yard  and  called  Hughes  out  for  the  purpose  of  having  a  diffi- 
culty with  him,  they  should  find  him  guilty.  A  crime  or  misdemeanor 
consists  in  a  violation  of  public  law,  in  the  commission  of  which 
there  must  be  a  union  or  joint  operation  of  act  and  intention  or 
criminal  negligence.  See  section  1  of  chapter  44  of  the  Revised  Stat- 
utes of  1837.  The  mere  fact  of  going  to  a  place  with  the  intention 
of  doing  an  unlawful  act  will  not  of  itself  subject  the  party  to  the 
punishment  denounced  against  such  act,  unless  he  also  carries  his 
intention  into  effect.  If  the  defendant  below  actually  made  an  as- 
sault upon  Hughes  in  pursuance  of  his  preconceived  and  settled  in- 
tention, then  it  was  that  the  motives  which  induced  him  to  go  to  the 
place  where  Hughes  wa".  might  have  been  legitimately  inquired  into 
in  aggravation  of  the  fine,  but  could  not  under  any  state  of  case  have 
furnished  conclusive  evidence  of  his  guilt.  No  valid  objection  is  per- 
ceived to  the  last  instruction;  but  for  the  error  in  giving  the  first 
the  judgment  must  be  reversed. 

i  The  evidence  and  the  charge  of  the  court  are  omitted. 


Sec.  2)       OFFENSES  AGAINST  PUBLIC  JUSTICE  AND  AUTHORITY.  13 

SECTION  2.— OFFENSES  AGAINST  PUBLIC  JUSTICE 
AND    AUTHORITY. 


ANONYMOUS. 
(King's  Bench,  1GS6.    3  Mod.  52.) 

One  was  indicted  for  the  drinking  of  an  health  to  the  pious  memory 
of  Stephen  College,  who  was  executed  at  Oxford  for  high  treason. 
He  was  fined  one  thousand  pounds,  and  had  sentence  to  stand  in  the 
pillory,  and  was  ordered  to  find  sureties  for  his  good  behavior.1 


REX    v.    DARBY. 

(King's  Bench,  1687.     3  Mod.  139.) 

The  defendant  was  indicted  for  speaking  of  scandalous  words  of 
Sir  John  Kerle,  a  justice  of  the  peace,  viz. :  "Sir  John  Kerle  is  a 
buffle-headed  fellow,  and  doth  not  understand  law;  he  is  not  fit  to 
talk  law  with  me ;  I  have  baffled  him,  and  he  hath  not  done  my  client 
justice."  This  is  a  scandal  upon  the  government,  and  it  is  as  much 
as  to  say  that  the  king  hath  appointed  an  ignorant  man  to  be  a  justice 
of  peace,  for  which  an  indictment  will  lie.2  And  of  that  opinion  was 
the  whole  court,  and  gave  judgment  accordingly.3 


PENNSYLVANIA   v.   MORRISON. 

(County  Court  of  Allegheny,  1795.    Add.  274.) 

These  men  were  indicted  for  having,  on  18th  August,  1794,  unlaw- 
fully, riotously,  and  routously  assembled  together  to  disturb  the  peace, 
and  in  Market  street,  in  Pittsburg,  raised  a  pole  or  standard,  called  a 
liberty  pole,  in  defiance  of  the  laws  of  the  state  of  Pennsylvania  and 
of  the  United  States,  and  as  an  indignity  and  insult  to  the  Honorable 
James  Ross,  Jasper  Yeates,  and  William  Bradford,  Esquires,  com- 
missioners on  behalf  of  the  United  States  of  America,  and  the  Hon- 
orable Thomas  McKean  and  William  Irwin,  Esquires,  commissioners 
on  behalf  of  the  state  of  Pennsylvania,  to  confer  with  the  citizens  of 

1  See  also,  absolving  impenitent  traitors,   Rex  v.  Cook,   Comb.   3S2  (1696). 
»  Part  of  this  case  is  omitted. 

a  Accord:  Anon.,  Comb.  46  (16S8) ;  Rex  v.  Collier,  1  Wils.  332  (1752).  Rut 
see  Reg.  v.  Wrightson,  11  Mod.  166  (1708) ;    Rex  v.  Weltje,  2  Camp.  142  (1S09). 


14  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

the  counties  west  of  the  Alleghany  mountains,  to  the  great  disturb- 
ance of  the  peace,  and  to  the  ill  example  of  others.1 

President.  Pole  raising  was  a  notorious  symptom  of  disssatisfac- 
tion,  and  the  exhibition  of  this,  in  the  only  part  of  the  country  where 
government  was  supposed  to  have  strength,  must  have  made  an  im- 
pression very  unfavorable  to  the  whole  country,  promoted  violence 
in  the  people  here,  and  induced  force  on  the  part  of  the  government. 

Verdict — guilty,  except  as  to  White  and   McWilliams. 


REX  v.  WILLIAMS. 

(King's  Bench,  1762.     3  Burr.  1317.) 

An  information  was  granted  by  the  court  against  the  defendants, 
as  justices  of  the  peace  for  the  borough  of  Penryn,  for  refusing  to 
grant  licenses  to  those  publicans  who  voted  against  their  recommenda- 
tion of  candidates  for  members  of  Parliament  for  that  borough.  It 
appeared  that  they  had  acted  very  grossly  in  this  matter,  having  previ- 
ously threatened  to  ruin  these  people,  by  not  granting  them  licenses, 
in  case  they  should  vote  against  those  candidates  whose  interests  those 
justices  themselves  espoused,  and  afterwards  actually  refusing  them 
licenses  upon  this  account  only.  And  Lord  Mansfield  declared  that 
the  court  granted  this  information  against  the  justices,  not  for  the 
mere  refusing  to  grant  the  licenses  (which  they  had  a  discretion  to 
grant  or  refuse,  as  they  should  see  to  be  right  and  proper),  but  for 
the  corrupt  motive  of  such  refusal,  for  their  oppressive  and  unjust 
refusing  to  grant  them,  because  the  persons  applying  for  them  would 
not  give  their  votes  for  members  of  Parliament  as  the  justices  would 
have  had  them.2 


COMMONWEALTH   v.    McHALE. 

(Supreme  Court  of  Pennsylvania,  1881.    97  Pa.  407.) 

Paxson,  J.8  The  indictment  against  Anthony  McHale  contains 
three  counts.  In  the  first  count  it  is  charged  that,  "intending  to  pro- 
cure  a  fal  e  count  and  return  of  the  votes  cast  by  the  electors,"  etc., 
he  di<l  "make  false  and  fraudulent  entries  in  the  books  kept  by  the 
clerks  :ii  $aid  election  in  said  election  district,  which  books  are  com- 
monly known  as  the  list  of  voters,  of  the  names  of  divers  persons, 

i  Pari  of  tiii  ■■mil led. 

i  Accord:  Common  wealth  v.  Alexander,  4  Hen.  &  M.  (Va.)  r>22  nsosi.  cor- 
ruption 'm  office;  Commonwealth  v.  Callaghan,  2  Va.  Oas.  460  (1826),  being 
Intox leated  while  in  dlscha rge  ol  office. 

»  Part  <>f  the  opinion  la  omitted. 


Sec.  2)       OFFENSES  AGAINST  PUBLIC  JUSTICE  AND  AUTHORITY.  15 

to  wit,  twenty-one  persons,  whose  names  are  as  follows,"  etc.  The 
second  count  charges  that,  with  like  intent,  he  did  "deposit,  among 
the  ballots  cast  at  said  election  in  said  election  district  by  the  elect- 
ors voting  thereat,  false  and  fraudulent  ballots  of  a  large  number,  to 
wit,  twenty-one  ballots,"  etc.  The  third  count  charges  that,  with 
like  intent,  he  did,  "with  the  connivance  of  the  election  officers  hold- 
ing said  election,  undertake  and  assume  to  count  the  ballots  cast  by 
the  electors  voting  at  said  election  in  said  election  district,  and  did 
falsely,  fraudulently,  maliciously,  and  unlawfully  make  a  false  and 
fraudulent  count  of  said  ballots  as  to  make  it  appear  that  two  hun- 
dred and  eleven  votes  were  deposited  for  one  Adolph  W.  Schalck 
for  the  office  of  district  attorney,  when  in  truth  and  in  fact  he  did 
not  receive  more  than  one  hundred  and  eighty-five  votes,"  etc. 

Some  of  these  offenses,  perhaps  all  of  them,  are  indictable  under 
the  act  of  1839  and  its  supplements,  when  committed  by  election 
officers.  The  defendants  were  not  election  officers;  at  least,  they 
were  not  indicted  as  such. 

It  must  be  conceded  that  offenses  which  strike  at  the  purity  and 
fairness  of  elections  are  of  a  "grave  character.  Are  they  indictable 
at  the  common  law?  This  is  a  serious,  and  at  the  same  time  com- 
paratively new,  question.  In  considering  it,  we  have  little  in  the  way 
of  authority  to  guide  us. 

It  was  assumed  by  the  learned  counsel  for  the  defendants  that  an 
indictment  will  not  lie  at  common  law  for  such  acts.  In  their  print- 
ed argument  they  dismiss  the  subject  with  this  brief  remark:  "Of- 
fenses against  the  election  laws  are  unknown  to  the  common  law. 
They  are  purely  and  exclusively  of  statutory  origin."  It  may  safely 
be  admitted  that,  if  the  question  depends  upon  the  fact  whether  a 
precise  definition  of  this  offense  can  be  found  in  the  text-books,  or 
perhaps  in  the  adjudged  English  cases,  the  law  is  with  the  defend- 
ants. This,  however,  would  be  a  narrow  view,  and  we  must  look 
beyond  the  cases  and  examine  the  principles  upon  which  common- 
law  offenses  rest.  It  is  not  so  much  a  question  whether  such  of- 
fenses have  been  so  punished  as  whether  they  might  have  been. 

What  is  a  common-law  offense? 

The  highest  authority  upon  this  point  is  Blackstone.  In  chapter 
13,  vol.  4,  of  Sharswood's  edition,  it  is  thus  defined :  "The  last  spe- 
cies of  offenses  which  especially  affect  the  commonwealth  are  those 
against  the  public  police  or  economy.  By  the  public  police  and 
economy  I  mean  the  due  regulation  and  domestic  order  of  the  king- 
dom, whereby  the  individuals  of  the  state,  like  members  of  a  well- 
governed  family,  are  bound  to  conform  their  general  behavior  to 
the  rules  of  propriety,  good  neighborhood,  and  good  manners,  and 
to  be  decent,  industrious,  and  inoffensive  in  their  respective  stations. 
This  head  of  offenses  must  therefore  be  very  miscellaneous,  as  it 
comprises  all  such  crimes  as  especially  affect  public  society,  and  are 
not  comprehended  under  any  of  the   four  preceding  series.     These 


16  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

amount,  some  of  them  to  felony,  and  others  to  misdemeanors  only." 
The  learned  author  then  proceeds  to  define  certain  offenses  of  both 
classes,  which  are  among  the  crimes  against  the  public  police  or 
economy.  The  felonies  I  will  omit.  The  misdemeanors  are:  (1) 
Common  or  public  nuisances,  of  which  a  large  variety  are  given, 
commencing  with  obstruction  to  public  highways  and  ending  with 
common  scolds.  (2)  Idleness.  (3)  Sumptuary  laws.  (4)  Gaming. 
(5)  Destroying  game.  These,  as  the  text  shows,  are  but  illustrations. 
A  large  number  of  these  and  other  common-law  offenses  are  now, 
and  have  for  many  years  been  regulated  by  statute  in  England.  But 
in  most  instances  the  statute  is  merely  declaratory  of  the  common 
law,  the  object  being  to  define  the  crime  with  greater  accuracy  or  to 
increase  the  punishment. 

The  above  quotation  from  Blackstone  is  in  harmony  with  other 
text  writers.  We  are  of  opinion  that  all  such  crimes  as  especially 
affect  public  society  are  indictable  at  common  law.  The  test  is,  not 
whether  precedents  can  be  found  in  the  books,  but  whether  they  in- 
juriously affect  the  public  police  and  economy. 

It  needs  no  argument  to  show  that  the  acts  charged  in  these  in- 
dictments are  of  this  character.  They  are  not  only  offenses  which 
affect  public  society,  but  they  affect  it  in  the  gravest  manner.  An 
offense  against  the  freedom  and  purity  of  elections  is  a  crime  against 
the  nation.  It  strikes  at  the  foundations  of  republican  institutions. 
Its  tendency  is  to  prevent  the  expression  of  the  will  of  the  people 
in  the  choice  of  rulers,  and  to  weaken  the  public  confidence  in  elec- 
tions. When  this  confidence  is  once  destroyed  the  end_  of  popular 
government  is  not  distant.  Surely,  if  a  woman's  tongue  can  so  far 
affect  the  good  of  society  as  to  demand  her  punishment  as  a  common 
scold,  an  offense  which  involves  the  right  of  a  free  people  to  choose 
their  own  rulers  in  the  manner  pointed  out  by  law  is  not  beneath 
the  dignity  of  the  common  law,  nor  beneath  its  power  to  punish. 
The  one  is  an  annoyance  to  a  small  portion  of  the  body  politic;  the 
other  shakes  the  social  fabric  to  its  foundations. 

We  arc  of  opinion  that  the  offenses  charged  in  these  indictments 
are  crimes  at  common  law.     We  regard  the  principle  thus  announced 
'  only  sound,  but  salutary.     The  ingenuity  of  politicians  is  such 
that  the  offenses  against  the  purity  of  elections  are  constantly  liable 
to  occur  which  are  n<  ically  covered  by  statute.     It  would  be 

a  reproach  to  the  law  were  it  powerless  to  punish  them. 

It  follows  from  what  has  hem  said  that  it  was  error  to  quash  the 
indi< 

ut  is  reversed  in  each  case,  and  a  procedendo  awarded.2 

ord:    Attempt  to  Influence  a  public  officer  by  offer  of  a  reward,  State 

-'■  '•'"  Am.   Dec.  7<>7  (1868);    prison  breach,  State  v. 

Doud    -  Conn.  :  obeying  an  order  of  a   justice    Res  v    Gllkes   :i 

52  'i  lie,  State  v.   Murray,   LB   Me.   LOO  (1838);    refusal  to 

.    i  i  mi. .it  v.  Commonwealth,  5  Whart.  (Pa.)  tS7  (1840);   preventing 


Sec.  2)       OFFENSES  AGAINST  PUBLIC  JUSTICE  AND  AUTHORITY.  17 

attendance  of  witness  or  juror,  State  v.  Carpenter,  20  Vt.  9  (1847) ;  refusing 
to  accept  office,  Attorney  General  v.  Read,  2  Mod.  299  (1678).  But  see  State 
v.  McEntyre,  25  N.  C.  171  (1842). 

Other  offenses  against  public  justice  are: 

Barratry. — "A  barrator  is  a  common  mover,  exciter,  or  maintainer  of  suits 
or  quarrels,  either  in  court  or  in  the  country."  Hawk.  P.  C.  (Curw.  Ed.)  474. 
See  Commonwealth  v.  McCulloch,  15  Mass.  227  (1818). 

Maintenance. — "An  unlawful  taking  in  hand,  or  upholding  of  quarrels 
or  sides,  to  the  disturbance  or  hindrance  of  common  right."  Hawk.  P.  C 
(Curw.  Ed.)  454.    See  Key  v.  Vattier,  1  Ohio,  132  (1823). 

Champerty. — "The  unlawful  maintenance  of  a  suit,  in  consideration  of 
some  bargain  to  have  part  of  the  thing  in  dispute,  or  some  profit  out  of  it." 
Hawk.  P.  C.  (Curw.  Ed.)  463.     See  Thompson  v.  Reynolds,  73  111.   11   (1874). 

Misprision  of  Felony. — "Misprision  of  felony  is  taken  for  a  concealment 
of  felony,  or  a  procuring  of  the  concealment  thereof,  whether  it  be  felony 
by  the  common  law,  or  by  statute."    1  Hawk.  P.  C.  (Curw.  Ed.)  73. 

Compounding  of  Crimes. — Compounding  a  crime  is  agreeing  to  take  com- 
pensation for  forbearing  to  prosecute  a  person  who  has  committed  a  crime. 
Receiving  a  promissory  note  is  sufficient  consideration  to  constitute  this  ele- 
ment of  the  offense,  though  the  note  may  never  be  paid.  Commonwealth  v. 
Pease,  16  Mass.  91  (1819).  It  is  no  defense  to  an  indictment  for  compound- 
ing that  the  defendant  did  in  fact  afterward  prosecute  the  guilty  person, 
State  v.  Duhammel,  2  Har.  (Del.)  532  (1836) ;  State  v.  Ash,  33  Or.  86,  54  Pac. 
184  (1898) ;  or  that  the  person  whose  alleged  crime  the  defendant  is  charged 
with  compounding  was  acquitted  of  such  crime,  People  v.  Buckland,  13  Wend. 
(N.  Y.)  592  (1835) ;  or  that  the  defendant  (a  police  officer)  was  corruptly  act- 
ing under  the  instructions  of  a  superior,  State  v.  Ash,  33  Or.  86,  54  Pac.  184 
(1898) ;  or  that  the  defendant  took  the  consideration  for  the  benefit  of  an- 
other, State  v.  Ruthven,  58  Iowa,  121,  12  N.  W.  235  (1882),  State  v.  Ash,  33 
Or.  86,  54  Pac.  184  (1898). 

Embracery. — "Embracery  is  an  attempt  to  influence  a  jury  corruptly  to 
one  side  by  promises,  persuasions,  entreaties,  money,  entertainments,  and 
the  like."  4  Bl.  Com.  140.  See  Gibbs  v.  Dewey,  5  Cow.  (N.  Y.)  503  (1S26) ; 
Caruthers  v.  State,  74  Ala.  406  (1883).  As  embracery  is  itself  only  an  at- 
tempt, there  can  be  no  indictment  for  an  attempt  to  commit  it.  State  v.  Sales, 
2  Nev.  268  (1866). 

Obstructing  Officers. — Obstructing  or  resisting  an  officer  in  the  lawful 
discharge  of  his  official  duties  is  a  criminal  offense.  See  Montgomery  v. 
Sutton,  58  Iowa,  697,  12  N.  W.  719 ;  State  v.  Bates,  23  Iowa,  96  (1S67) ;  Peo- 
ple v.  Clements.  68  Mich.  655,  36  N.  W.  792,  13  Am.  St.  Rep.  373  (1888). 

Escape  and  Prison  Breach. — "The  escape  of  a  person  (lawfully)  arrested, 
by  eluding  the  vigilance  of  his  keepers  before  he  is  put  in  hold  or  in  prison, 
is  an  offense  against  public  justice."'  4  Bl.  Com.  129.  See  State  v.  Doud,  7 
Conn.  385  (1S29). 

Contempts. — "Contempts  *  *  *  are  either  direct,  which  openly  insult 
or  resist  the  powers  of  the  courts,  or  the  persons  of  the  judges  who  preside 
there,  or  else  are  consequential,  which  (without  such  gross  insolence  or  di- 
rect opposition)  plainly  tend  to  create  a  universal  disregard  of  their  author- 
ity." 4  Bl.  Com.  284. 
Mik.Cr.L.— 2 


IS  THE   ELEMENTS   OF   CRIME.  (Ch.  2 

SECTION  3.— OFFENSES  AGAINST  THE  LAW  OF  NA- 
TIONS. 


RESPUBLICA  v.  DE  LONGCHAMPS. 

(Oyer  and  Terminer  of  Philadelphia,  1784.    1  Dall.  Ill,  1  L.  Ed.  59.) 

McKean,  Chief  Justice.1  Charles  Julian  De  Longchamps:  You 
have  been  indicted  for  unlawfully  and  violently  threatening  and  men- 
acing bodily  harm  and  violence  to  the  person  of  the  Honorable  Fran- 
cis Barbe  de  Marbois,  secretary  to  the  legation  from  France,  and 
consul  general  of  France  to  the  United  States  of  America,  in  the  man- 
sion house  of  the  minister  plenipotentiary  of  France,  and  for  an  as- 
sault and  battery  committed  upon  the  said  secretary  and  consul  in 
a  public  street  in  the  city  of  Philadelphia.  To  this  indictment  you  have 
pleaded  that  you  were  not  guilty,  and  for  trial  put  yourself  upon  the 
country.  An  unbiased  jury,  upon  a  fair  trial  and  clear  evidence,  have 
found  you  guilty. 

The  first  crime  in  the  indictment  is  an  infraction  of  the  law  of  na- 
tions. This  law,  in  its  full  extent,  is  part  of  the  law  of  this  state,  and 
is  to  be  collected  from  the  practice  of  different  nations,  and  the  au- 
thority of  writers. 

The  person  of  a  public  minister  is  sacred  and  inviolable.  Whoever 
offers  any  violence  to  him  not  only  affronts  the  sovereign  he  repre- 
sents, but  also  hurts  the  common  safety  and  well-being  of  nations. 
He  is  guilty  of  a  crime  against  the  whole  world. 

All  the  reasons  which  establish  the  independency  and  inviolability 
of  the  person  of  a  minister  apply  likewise  to  secure  the  immunities  of 
his  house.  It  is  to  be  defended  from  all  outrage.  It  is  under  a  pecu- 
liar protection  of  the  laws.  To  invade  its  freedom  is  a  crime  against 
the  state  and  all  other  nations. 

The  comites  of  a  minister,  or  those  of  his  train,  partake  also  of  his 
inviolability.  The  independency  of  a  minister  extends  to  all  his  house- 
In. Id.  These  are  so  connected  with  him  that  they  enjoy  his  privileges 
and  follow  his  fate.  The  secretary  to  the  embassy  has  his  commission 
ii  the  sovereign  himself,  lie  is  the  most  distinguished  character 
in  the  suite  of  a  public  minister,  and  is  in  some  instances  considered  as 
a  kind  of  public  minister  himself.  Is  it  not,  then,  an  extraordinary 
insult  to  use  threats  of  bodily  harm  to  his  person  in  the  domicile  of 
the  mini  ter  plenipotentiary?  If  this  is  tolerated,  his  freedom  of  con- 
duct is  taken  away,  the  business  of  his  sovereign  cannot  be  transact- 
ed,  and  his  dignity  and  grandeur  will  be  tarnished. 

You,  then,  have  been  guilty  of  an  atrocious  violation  of  the  law  of 
nations;    you  have  grossly   insulted  gentlemen,  the  peculiar  objects  of 

i  Pari  <>f  this  case  is  omitted. 


SeC.  3)  OFFENSES   AGAINST   THE    LAW   OF    NATIONS.  19 

this  law  (gentlemen  of  amiable  characters,  and  highly  esteemed  by 
the  government  of  this  state),  in  a  most  wanton  and  unprovoked  man- 
ner. And  it  is  now  the  interest  as  well  as  duty  of  the  government  to 
animadvert  upon  your  conduct  with  a  becoming  severity — such  a  se- 
verity as  may  tend  to  reform  yourself,  to  deter  others  from  the  com- 
mission of  the  like  crime,  preserve  the  honor  of  the  state,  and  main- 
tain peace  with  our  great  and  good  ally  and  the  whole  world. 

A  wrong  opinion  has  been  entertained  concerning  the  conduct  of 
Lord  Chief  Justice  Holt  and  the  Court  of  King's  Bench,  in  England, 
in  the  noted  Case  of  the  Russian  Ambassador.  They  detained  the  of- 
fenders, after  conviction,  in  prison  from  term  to  term  until  the  Czar 
Peter  was  satisfied,  without  ever  proceeding  to  judgment;  and  from 
this  it  has  been  inferred  that  the  court  doubted  whether  they  could 
inflict  any  judgment  for  an  infraction  of  the  law  of  nations.  But 
this  was  not  the  reason.  The  court  never  doubted  that  the  law  of 
nations  formed  a  part  of  thelaw  of  England,  and  that  a  violation  of 
this" general  law  could  be  punished  by  them;  but  no  punishment  less 
than  death  would  have  been  thought  by  the  Czar  an  adequate  repara- 
tion for  the  arrest  of  his  ambassador.  This  punishment  they  could 
not  inflict,  and  such  a  sentence  as  they  could  have  given  he  might  have 
thought  a  fresh  insult.  Another  expedient  was  therefore  fallen  upon. 
However,  the  princes  of  the  world  at  this  day  are  more  enlightened, 
and  do  not  require  impracticable  nor  unreasonable  reparations  for 
injuries  of  this  kind. 

The  second  offense  charged  in  the  indictment,  namely,  the  assault 
and  battery,  needs  no  observations. 

Upon  the  whole,  the  court,  after  a  most  attentive  consideration  of 
every  circumstance  in  this  case,  do  award,  and  direct  me  to  pronounce, 
the  following  sentence: 

That  you  pay  a  fine  of  100  French  crowns  to  the  commonwealth ; 
that  you  be  imprisoned  until  the  4th  day  of  July,  1786,  which  will 
make  a  little  more  than  two  years'  imprisonment  in  the  whole ;  that 
you  then  give  good  security  to  keep  the  peace  and  be  of  good  behavior 
to  all  public  ministers,  secretaries  to  embassies,  and  consuls,  as  well 
as  to  all  the  liege  people  of  Pennsylvania,  for  the  space  of  seven  years, 
by  entering  into  a  recognizance,  yourself  in  £1,000,  and  two  securi- 
ties in  £500  each;  that  you  pay  the  costs  of  this  prosecution,  and  re- 
main committed  until  this  sentence  be  complied  with. 


20  THE    ELEMENTS    OF    CRIME.  (Ch.  2 

SECTION    4.— OFFENSES    AGAINST    RELIGION. 


REX  v.  TAYLER. 
(King's  Bench,  1676.     3  Keb.  607.) 

An  information  by  Mr.  Attorney  Jones  for  saying,  Christ  is  a 
Whoremaster,  and  Religion  is  a  Cheat,  and  profession  a  Cloak,  and 
all  Cheats,  all  are  mine,  and  I  am  a  King's  Son,  and  fear  neither 
God,  Devil,  nor  man;  I  am  Christ's  younger  Brother  (proved  by  three 
witnesses),  and  that  Christ  is  a  Bastard,  and  damn  all  Gods  of  the 
Quakers,  &c.  In  destruction  of  Society  and  Religion,  and  contempt, 
&c.     None  fears  God  but  an  hypocrite,  proved  by  one. 

Hale,  C.  J.  These  words  though  of  Ecclesiastical  cognizance,  yet 
that  Religion  is  a  cheat,  tends  to  dissolution  of  all  Government,  and 
therefore  punishable  here,  and  so  of  contumelious  reproaches  of  God, 
or  the  Religion  establisht;  which  the  Court  agreed  and  adjudged. 
An  Indictment  lay  for  saying  the  Protestant  Religion  was  a  fiction 
for  taking  away  Religion,  all  obligation  to  Government  by  Oaths, 
&c,  ceaseth,  and  Christian  Religion  is  a  part  of  the  law  itself,  there- 
fore injuries  to  God  are  as  punishable  as  to  the  King,  or  any  com- 
mon person.     Verdict,  pro  Rege.1 


SECTION  5.— OFFENSES  AGAINST  PUBLIC  PEACE. 


REX  v.  SUMMERS. 

(King's  Bench,  1701.     3  Salk.  191.) 

The  defendant  was  indicted  at  the  sessions,  for  writing  a  scandal- 
ous letter  to  one  Mellith  concerning  a  young  woman  whom  he  in- 
tended to  marry.  Upon  not  guilty  pleaded,  he  was  found  guilty; 
and  afterwards  he  brought  a  writ  of  error,  and  the  error  assigned 
thai  this  was  a  private  letter,  for  which  he  was  not  punishable 
By  way  of  indictment;  or,  if  an  indictment  would  lie,  yet  noi  before 
the  justices  of  the  peace  at  their  sessions.  Sed  per  curiam,  this  is  an 
qgfinse,  and  indictable  before  the  justices  in  sessions,  because  it  tends 
to  tli''  hi*  ach  of  the  peace.2 

i  Record:  Res  v.  Woolston,  2  sir.  s.°, t  (1766);  People  v.  Buggies,  R  Johns. 
(N.  y.i  290,  5  Am.  !»<■'•.  335  (1811);  Dpdegrapb  v.  Commonwealth,  H  Serg.  & 
i:  (Pa  i  :::ii  (1824).  See,  also,  disturbing  religious  meeting,  State  \\  Jasper,  i"> 
N.  C.  323  (1833);  bur g  Bibles,  Reg.  v.  Petcherlni,  7  Cox,  0.  O.  7:>  (1856). 

•  Accord:  Sending  challenge  to   fight,   Rei   v.   Phillips,  6  Bast,  464  (1805). 


Sec.  5)  OFFENSES   AGAINST   PUBLIC    PEACE.  21 

COMMONWEALTH  v.  HAINES. 

(Supreme  Court  of  Pennsylvania,  1824.    4  Clark,  17.) 

This  was  a  case  removed  by  certiorari  to  the  Supreme  Court  from 
the  mayor's  court  of  Philadelphia,  and  tried  before  Gibson,  J.,  at 
nisi  prius,  in  September,  1824. 

The  first  count  of  the  indictment  charged  that  the  defendant,  de- 
vising and  intending  to  raise  and  create  riots,  etc.,  with  the  usual 
averments,  "unlawfully,  wickedly,  and  maliciously  incited,  encour- 
aged, and  endeavored  to  provoke  and  instigate  divers  good  citizens 
of  the  commonwealth,  whose  names  are  to  said  inquest  unknown," 
etc.,  "to  assemble  and  gather  together  to  disturb  the  peace  of  the 
commonwealth,  and  to  injure  and  annoy  said  citizens,  etc.,  and  that 
for  that  purpose,  he,  the  said  defendant,  then  and  there  erecting  and 
fixing  a  certain  figure,  resembling  a  man,  commonly  called  a  Paddy, 
as  and  for  the  effigy  of  St.  Patrick,  and  by  these  means,  etc.,  did 
collect  together  a  large  number  of  citizens,  who  behaved  riotously 
for  a  long  space  of  time,"  etc.  The  remaining  counts  were  for  at- 
tempts to  produce  riot  generally,  without  specifying  the  means.  It 
appeared  from  the  evidence  that  some  time  between  dusk  and  11 
o'clock  on  the  16th  of  March,  1824,  a  stuffed  Paddy,  with  the  ac- 
companiment of  a  rum  bottle  and  a  string  of  potatoes,  was  suspended 
to  a  tree  near  the  junction  of  Second  street  and  Germantown  Road, 
in  the  district  of  Kensington,  a  neighborhood  inhabited  principally 
by  emigrants  from  Ireland.  The  figure  remained  in  this  position 
until  the  next  morning,  when  it  was  removed  to  prevent  a  disturb- 
ance, which  seemed  likely  to  ensue.  The  defendant,  an  innkeeper 
residing  in  that  district,  was  proved  by  several  witnesses  to  have 
been  in  his  house  during  the  whole  of  the  evening  on  which  the 
Paddy  was  erected,  and  a  great  deal  of  conflicting  evidence  was  pro- 
duced, which  made  his  agency  in  the  affair  very  questionable.  The 
averment  in  the  indictment  that  the  figure  was  intended  as  an  effigy 
of  St.  Patrick,  and  was  meant  and  well  calculated  to  excite  the  angry 
feelings  of  the  immediate  population,  was  fully  supported.  It  was 
proved,  also,  beyond  contest,  that  the  defendant  was  concerned  in 
the  exhibition  on  the  18th  of  March,  of  a  female  figure,  commonly 
called  a  Shelah,  but  with  several  features,  beside  that  of  sex,  dis- 
tinguishing it  from  a  Paddy.  Some  evidence  was  offered  to  show, 
also,  that,  while  the  exhibition  of  a  Paddy  was  resented  as  an  insult 
upon  the  Catholic  portion  of  the  Irish,  a  Shelah  was  often  displayed 
as  a  retaliatory  emblem,  and  may  have  been  so  meant  in  the  present 
case.  A  tumult  ensued,  the  insult  being  spiritedly  resented,  and  the 
neighborhood  was  thrown  into  confusion  thereby  for  several  suc- 
ceeding weeks.  The  defendant,  it  was  conceded,  was  clearly  con- 
nected with  the  Shelah,  though  his  instrumentality  in  the  Paddy  was 
controverted. 


22  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

The  jury  having  been  addressed  by  Randall  and  Kittera  for  the 
prosecution,  and  Biddle  and  D.  P.  Brown  for  the  defense,  were 
charged  substantially  as  follows,  by 

Gibson,  J.  The  offense  specified  in  the  first  count  is  clearly  in- 
dictable at  common  law.  No  man  has  a  right  to  trifle  with  the 
feelings  of  any  large  class  of  men,  so  as  to  provoke  them  to  a  breach 
of  the  peace.  If  it  is  done  by  libel,  no  one  doubts  it  is  a  misdemeanor. 
If  it  is  done  by  effigy,  is  it  less  so?  Suppose  the  defendant  had  pub- 
lished a  picture  of  the  same  character  and  with  the  same  tendency 
as  the  figure  which  is  the  subject  of  the  present  offense;  would  it 
not  be  held  a  libel?  The  gist  of  the  offense  is  its  tendency  to  pro- 
voke a  breach  of  the  peace.  It  may  be  indiscreet  in  the  Irish  resi- 
dents of  the  district  to  take  notice  of  acts  of  the  kind,  but  it  is  worse 
than  indiscreet  in  others  to  provoke  them  to  do  so.  The  facts  are 
with  you  exclusively.  If  you  believe  the  allegation  of  the  indictment 
to  be  supported  by  the  evidence,  you  will  be  bound  to  convict. 

A  verdict  of  acquittal  was  subsequently  rendered. 

Other  acts  indictable  at  common  law,  as  against  the  public  peace,  are: 

Riot. — Which  is  defined  to  be:  "A  tumultuous  disturbance  of  the  peace, 
by  three  persons  or  more  assembling  together  of  their  own  authority,  with  an 
intent  mutually  to  assist  one  another  against  any  one  who  shall  oppose  them, 
in  the  execution  of  some  enterprise  of  a  private  nature,  and  afterwards  ac- 
tually executing  the  same  in  a  violent  and  turbulent  manner,  to  the  terror 
of  the  people,  whether  the  act  intended  were  of  itself  lawful  or  unlawful." 
1  Hawk.  P.  C.  (Curw.  Ed.)  513.  See  Reg.  v.  Cunninghame,  16  Cox,  C.  C. 
420  (1888). 

Unlawful  Assembly. — "Any  meeting  whatsoever  of  great  numbers  of 
people,  with  such  circumstances  of  terror  as  cannot  but  endanger  the  public 
peace,  and  raise  fears  and  iealousies  among  the  king's  subjects."  1  Hawk. 
P.  C.  (Curw.  Ed.)  p.  516,  c.  28.     See  Reg.  v.  Vincent,  9  Car.  &  P.  91   (1839). 

Affray.— "The  fighting  of  two  or  more  persons  in  some  public  place,  to 
the  terror  of  his  majesty's  subjects."  4  Bl.  Com.  145.  See  State  v.  Sumner, 
5  Strob.  (S.  C.)  53  (1850). 


REX  v.  SMITH. 

(King's  Bench,  1725.    1  Strange,  704.) 

The  defendant  was  convicted  on  an  indictment  for  making  great 
noises  in  the  night  with  a  speaking  trumpet,  to  the  disturbance  of 
the  neighborhood,  which  the  court  held  to  be  a  nuisance,  and  fined 
the  defendant  £h.x 

i  Compare  Commonwealth  v.  Edwards,  1  Ash.  40  (1S23);  Commonwealth  v. 
Wing,  :>  Pick.  (Mass.)  1,  19  Am.  Dec.  347  (1829);  Kllpatrlck  v.  People,  6  Denlo 
(N,  y.i  L'77  (1848);  Henderson  v.  Commonwealth,  8  Gkrat.  (Va.)  708,  58  Am. 
Dec  160  ns.vj);  State  v.  Schlottman,  52  Mo.  104  (1873);  Ware  v.  Loveridge, 
Tf,  Mich.  188,  42  N.  W.  997  (188'J). 


SeC.  5)  OFFENSES   AGAINST   PUBLIC   PEACE.  23 

COMMONWEALTH  v.  CRAMER. 
(Court  of  Quarter  Sessions  of  Dauphin,  1870.    2  Pears.  441.) 

By  the  Court.  The  defendant  was  charged,  under  the  154th  sec- 
tion _of  the  Penal  Code~(P7X.  1860,  p.  419),  with  having  willfully 
and  maliciously  maimed,  disfigured,  and  wounded  a  steer,  the  prop- 
erty of  Jonas  C.  Brinzer,  and,  having  been  convicted  at  the  last  ses- 
sions, a  motion  was  made  for  a  new  trial  on  account  of  misdirection 
in  the  charge  of  the  court  and  also  in  arrest  of  judgment.  There  is 
no  ground  whatever  for  arresting  the  judgment,  as  the  indictment  is 
good  on  its  face.  The  only  question  is,  was  it  properly  supported  by 
the  evidence,  and  was  the  jury  rightly  instructed  as  to  the  law  of  the 
case? 

It  was  proved  on  the  trial  that  at  the  time  of  the  injury  the  steer 
was  trespassing  on  the  inclosed  grounds  of  the  defendant;  had  re- 
peatedly jumped  into  his  cornfield,  and  was  destroying  his  corn;  that 
he  was  very  troublesome,  addicted  to  jumping,  and  what  might  be 
called  in  common  parlance  "very  breachy."  The  defendant  shot  him 
many  times  with  a  gun  heavily  loaded  with  shot,  at  one  time  wrapping 
up  the  charge  and  hitting  him  so  severely  that  he  fell  to  his  knees, 
but  was  able  to  run  off  and  again  jump  the  fence,  which  was  low  and 
not  in  good  order.  The  steer  was  neither  maimed  nor  disfigured,  but 
was  pretty  severely  "wounded"  by  the  shots,  and  greatly  fell  away  in 
flesh.  The  court  instructed  the  jury  that  the  evidence  did  not  bring 
the  case  within  the  statute,  but,  if  he  was  wounded  as  charged  in  the 
indictment,  it  was  a  crime  at  common  law,  although  concluding  con- 
tra formam  statuti.  The  only  question  of  any  difficulty  was  whether 
the  act  must  be  done  out  of  malice  towards  the  owner,  or  malice  and 
passion  against  the  animal.  There  was  no  pretense  that  there  was 
any  malice  towards  the  owner  in  this  case,  as  the  parties  were  com- 
parative strangers  to  each  other  and  lived  many  miles  apart.  The 
prosecutor's  cattle  were  pasturing  on  an  adjoining  farm  to  the  de- 
fendant. 

It  is  a  little  difficult  to  ascertain  precisely  what  amounts  tojnali- 
cious  mischief  by  the  common  law.  Blackstone,  in  his  Commentaries 
(volume  4),  says :  "The  act  must  be  done  either  out  of  a  spirit  of  wan- 
ton cruelty,  or  black  and  diabolical  revenge."  One  reason  why  we 
find  so  little  on  the  subject  in  the  English  writers  on  criminal  juris- 
prudence tending  to  show  what  amounted  to  this  crime  at  common 
law  is  that  almost  every  possible  injury  to  property  was  punished  by 
statutes,  and  the  indictments  have  generally,  and  perhaps  always,  for 
the  last  200  years,  been  preferred  under  some  one  of  the  various  acts 
of  Parliament.  It  may  be  conceded  that  in  England  it  is  settled  that 
the  offense  must  be  committed  out  of  malice  towards  the  owner  of 
the  injured  property,  unless,  perhaps,  in  cases  of  great  and  wanton 
cruelty  towards  domestic  animals.     Even   under  their  statutes   it  is 


24  THE    ELEMENTS   OF   CEIME.  (Cll.  2 

held  that  there  must  be  malice  towards  the  owner.  The  worst  acts 
of  cruelty  committed  through  passion  against  the  animal  are  not  pun- 
ished criminally.  In  this  state,  and  perhaps  in  many  others,  our  laws 
have  been  construed  differently.  When  our  various  acts  passed  to 
protect  property  of  any  kind  speak  of  malicious  and  willful  injury 
thereto,  we  are  justifiable  in  saying  that  it  applies  to  the  forbidden 
act,  whether  done  out  of  malice  toward  the  owner,  or  through  a  spir- 
it of  wanton  mischief,  especially  if  accompanied  with  cruelty.  Where 
malice  is  thus  mentioned,  it  does  not  mean  hatred  or  ill  will,  but  im- 
ports an  evil  disposition  in  general,  a  heart  regardless  of  social  duty. 
Our  Code  is  full  of  provisions  protecting  inanimate  objects,  as  well 
as  animate,  and  we  hold  that  they  are  equally  protected  from  wan- 
ton mischief,  or  from  injury  or  destruction  out  of  malice  towards  the 
owner.  Wharton,  our  best  writer  on  Criminal  Law  in  this  state,  says, 
in  volume  2,  at  page  2002 :  "Malicious  mischief  in  this  country  as  a 
common-law  offense  has  received  a  far  more  extended  interpretation 
than  has  been  attached  to  it  in  England."  He  defines  it  to  be  "any 
malicious  or  mischievous  injury,  either  to  the  rights  of  another  or 
those  of  the  public  in  general."  In  Commonwealth  v.  Walden,  3 
Cush.  (Mass.)  558,  it  is  said:  "The  jury  must  be  satisfied  that  the 
injury  was  done  either  out  of  a  spirit  of  wanton  cruelty  or  of  wicked 
revenge."  In  Massachusetts  the  distinction  seems  to  be  taken  between 
injuries  done  to  animate  and  inanimate  objects.  In  the  latter  there 
must  be  malice  towards  the  owner,  whilst  in  the  former  wanton 
cruelty  is  criminally  punishable.  It  was  held  in  that  state  to  be  indict- 
able to  poison  cattle.     Commonwealth  v.   Leach,  1   Mass.  59. 

The  subject  has  undergone  considerable  examination  in  the  state  of 
New  York.  In  People  v.  Smith,  5  Cow.  (N.  Y.)  258,  "it  is  held  to  be 
indictable  to  maliciously,  wickedly,  and  willfully  kill  a  cow."  The  court 
speaks  of  the  act  being  one  of  wanton  cruelty,  and  that  it  cannot  be 
expected  that  a  mind  so  depraved  will  be  restrained  by  a  mere  liability 
to  pay  damages.  The  perpetator  may  be  insolvent,  and  thus  gratify 
his  malice  with  impunity,  if  there  is  no  redress  other  than  by  civil  ac- 
tion. The  object  is  to  protect  the  citizen  in  his  right  by  restraining  and 
punishing  the  wrongdoer.  Such  acts  discover  a  degree  of  moral 
turpitude  dangerous  to  society,  and  for  its  security  ought  to  be  pun- 
ishable criminally.  It  is  an  evil  example  of  the  most  pernicious  tend- 
ency, inasmuch  as  the  act  is  an  outrage  upon  the  principles  and  feel- 
ings of  humanity. 

In  Loomis  v.  Edgerton,  1!'  Wend.  (N.  Y.)  419,  it  was  hold  to  be 
indictable  to  willfully,  wickedly,  and  secretly  break  up  a  cutter,  and 
People  v.  Smith,  ~>  Cow.  (K.  V. )  358,  is  cited  with  approbation.  The 
judge,  after  stating  that  in  many  courts  it  had  been  held  that  such 
offenses  were  not  indictable,  says  he  "is  happy  to  find  that  the  weight 
of  authority  is  the  other  way."  "To  say  th.it  it  was  not  so  would  be 
a  sad  exception  to  tl  ral  wisdom  of  the  common  law."      At  an 

after  time  the  courts  of  that  state  decided  in   ECilpatnck  v.  People,  5 


Sec.  5)  OFFENSES  AGAINST  PUBLIC  PEACE.  25 

Denio,  277,  that  it  was  not  indictable  at  common  law  to  maliciously 
break  the  windows  of  another's  dwelling.  If  done  secretly,  it  might 
be  otherwise.  At  the  same  time  the  court  considers  that  a  criminal 
prosecution  might  be  sustained  for  maliciously  killing  or  wounding 
domestic  animals,  as  that  shows  depravity  of  mind  and  cruelty  of  dis- 
position, and  the  cases  in  1  Dall.  (Pa.)  335,  1  L.  Ed.  163,  Respublica 
v.  Teischer,  and  5  Bin.  (Pa.)  277,  Commonwealth  v.  Taylor,  are 
spoken  of  with  approbation,  as  also  that  already  cited  from  5  Cow. 

In  State  v.  Briggs,  1  Aikens  (Vt.)  22G,  an  indictment  was  sustain- 
ed for  cutting,  maiming,  and  destroying  colts.  The  judge  says : 
"When  the  most  wanton  cruelty  to  the  beast  is  the  grievance,  we  may 
pass  by  the  civil  injury  and  treat  the  deed  as  a  misdemeanor  at  com- 
mon law.  With  force  and  arms  to  injure  the  property  of  another  is 
a  civil  injury,  for  which  the  owner  of  the  property  may  have  his  ac- 
tion of  trespass.  But  the  wounding  and  torturing  a  living  animal, 
not  only  with  force  and  arms,  but  with  all  the  malicious  and  wicked' 
motives  and  intentions  set  forth  in  this  indictment,  is  a  misdemeanor 
■to  be  prosecuted  by  the  judges."  This  case  appears  afterwards  to 
have  been  disregarded  and  overruled  in  that  state,  but  in  our  opinion 
is  good  law  and  sound  morals. 

In  Pennsylvania  we  have  perhaps  gone  further  than  in  any  other 
state  in  punishing  malicious  mischief.  As  early  as  1788,  in  Teischer's 
Case,  1  Dall.  335,  1  L.  Ed.  163,  it  was  held  indictable  to  maliciously, 
willfully,  and  wickedly  kill  a  horse,  and  McKean,  C.  J.,  says  whatever 
amounts  to  a  public  wrong  may  be  made  the  subject  of  an  indict- 
ment. The  poisoning  of  chickens,  cheating  with  false  dice,  fraudu- 
lently tearing  a  promissory  note,  and  many  other  offenses  of  a  sim- 
ilar description  have  heretofore  been  indicted.  Breaking  windows 
by  throwing  stones  at  them,  embezzling  public  money,  so  for  mali- 
ciously killing  a  dog,  for  writing  threatening  letters  to  obtain  money, 
United  States  v.  Ravara,  2  Dall.  (Pa.)  297,  Fed.  Cas.  No.  16,122,  1  L. 
Ed.  388;  girdling  a  tree  growing  on  public  ground,  Commonwealth 
v.  Eckert,  2  Browne  (Pa.)  249;  so  to  enter  the  house  of  another, 
make  a  great  noise,  and  disturb  and  alarm  the  family  (5  Bin.)  ;  to 
be  guilty  of  wanton  cruelty  to  animals  in  general,  United  States  v. 
Logan,  2  Cranch,  C.  C.  (U.  S.)  259,  Fed.  Cas.  No.  15,623;  to  put 
cowitch  on  a  towel  to  injure  a  person  about  to  use  it,  People  v.  Blake, 
1  Wheeler,  Cr.  Cas.  (N.  Y.)  490;  to  cut  off  the  hair  from  the  mane  or 
tail  of  a  horse,  Boyd  v.  State,  2  Humph.  (Tenn.)  39;  to  discharge  a 
gun  with  intent  to  disturb  a  sick  person,  Commonwealth  v.  Wing,  9 
Pick.  (Mass.)  1,  19  Am.  Dec.  347;  so  to  destroy  a  line  tree  or  other 
landmark,  or  to  set  fire  to  a  number  of  barrels  of  tar  belonging  to 
another ;  so  to  cast  the  carcass  of  a  dead  animal  into  a  well  in  daily 
use,  State  v.  Buckman,  8  N.  H.  208,  29  Am.  Dec.  646.  Most  of  these 
cases  are  cited  in  2  Wharton's  Cr.  Law,  p.  2003. 

In  the  case  before  us  the  owner  of  the  cornfield  could  have  had 
ample  redress  for  the  injury  done  by  the  steer,  had  he  proceeded  un- 


26  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

der  the  law  relating  to  estrays  or  by  an  action  against  the  owner.  In- 
stead of  pursuing  a  legal  remedy,  he  resorted  to  acts  of  barbarity 
which  are  themselves  evidence  of  malice.  Although  we  may,  in  pro- 
nouncing sentence,  take  into  consideration  the  provocation  to  anger 
by  the  trespasses  of  the  animal,  yet  we  cannot  avoid  imposing  some 
punishment  on  the  defendant  for  his  violation  of  the  criminal  law. 


SECTION  6.— OFFENSES  AGAINST   PUBLIC  HEALTH. 


REX    v.    TAYLOR. 

(King's  Bench,  1742.     2  Strange,  1167.) 

The  Court  granted  an  information  against  him  as  for  a  nuisance, 
on  affidavits  of  his  keeping  great  quantities  of  gunpowder,  to  the 
endangering  the  church  and  houses  where  he  lived.1 


REX  v.  VANTANDILLO. 

(King's  Bench,  1815.     4  Maule  &  S.  73.) 

The  defendant  was  indicted  for  carrying  her  child  while  infected 
with  the  smallpox  along  a  public  highway. 

Owen  moved  in  arrest  of  judgment,  that  this  was  an  indictment 
of  the  first  impression.  He  observed  that  the  defendant  was  not 
indicted  for  inoculating,  or  causing  the  child  to  be  inoculated,  with 
an  infectious  disease;  for  it  is  not  stated  how  the  child  came  by  it. 
And  it  is  consistent  with  this  indictment  that  the  child  might  have 
caught  the  disease ;  and,  supposing  it  had,  might  not  the  mother  carry 
it  through  the  street  in  order  to  procure  medical  advice  without 
being  subject  to  be  indicted  for  it?  Therefore  the  indictment  ought 
to  have  shown  that  the  act  was  unlawful,  and  ought  also  to  have 
alleged  that  there  was  some  sore  upon  the  child  at  the  time  when 
it  was  so  carried,  by  analogy  to  the  writ  "de  leproso  amovendo,"  which, 
it  seems,  lay  only  for  those  who  appeared  to  the  sight  of  all  men 
by  their  voice  and  sores  to  be  lepers,  and  not  for  those  infected  with 
the  disease,  but  not  outwardly  in  their  bodies.  See  Fitz.  N.  B.  634. 
And  if  the  merely  alleging  that  the  disorder  is  infectious  and  dan- 
gerous to  the  subjects  be  sufficient,  there  is  a  multitude  of  diseases 

i  Accord:  Reg.  v.  Lister,  Dears.  A  B.  200  (1856).  Cf.  People  v.  Sands,  l 
Johns.  (N.  Y.)  78,  8  Am.  Dec.  206  (1806).  Obstructing  navigable  river,  State 
v.  Thompson,  '1  Btrob.  (S.  0.)  12,  17  Am.  Dec.  588  (1847);  obstructing  high- 
way, Reading  v.  Commonwealth,  n  Pa.  106,  .r»i  Am,  Dec,  584  (1840);  main- 
taining slaughter  bouse  near  dwelling,  Moses  v.  State,  58  [nd.  185  (1877). 


Sec.  7)  OFFENSES   AGAINST   TRADE.  27 

of  which  the  same  may  be  predicated,  and  consequently  the  patient 
during  the  continuance  of  any  such  disease  must  never  go  abroad 
at  all,  so  difficult  will  it  be  to  draw  the  line.  The  only  offenses  against 
the  public  health  of  which  Hawkins  speaks  are  spreading  the  plague 
and  neglecting  quarantine  (Hawk.  P.  C.  cc.  52,  53);  and  Lord  Hard- 
wicke,  it  appears,  thought  the  building  of  a  house  for  the  reception  of 
patients  inoculated  with  the  smallpox  was  not  a  public  nuisance,  and 
mentioned  that  upon  an  indictment  of  that  kind  there  had  lately  been 
an  acquittal.  And  he  added  that  the  fears  of  mankind,  though  they 
may  be  reasonable,  will  not  create  a  nuisance  (3  Atk.  750). x 

Le  Blanc,  J.,  in  passing  sentence,  observed  that  although  the  court 
had  not  found  upon  its  records  any  prosecution  for  this  specific  of- 
fense, yet  there  could  be  no  doubt  in  point  of  law  that  if  a  person 
unlawfully,  injuriously,  and  with  full  knowledge  of  the  fact,  exposes 
in  a  public  highway  a  person  infected  with  a  contagious  disorder, 
it  is'a  common  nuisance  to  all  the  subjects,  and  indictable  as  such. 
However,  the  court  was  not  disposed  upon  the  present  occasion  to 
impute  to  the  defendant  an  intention  of  being  the  cause  of  the  conse- 
quences which  had  followed.  Neither  did  they  pronounce  that  every 
person  who  inoculated  for  this  disease  was  guilty  of  an  offense,  pro- 
vided it  was  done  in  a  proper  manner,  and  the  patient  was  kept  from 
the  society  of  others,  so  as  not  to  endanger  a  communication  of  the 
disease.  In  such  a  case  the  law  did  not  pronounce  it  to  be  an  offense. 
But  no  person  having  a  disorder  of  this  description  upon  him  ought 
to  be  publicly  exposed,  to  the  endangering  the  health  and  lives  of 
the  rest  of  the  subjects. 

The  defendant  was  sentenced  to  imprisonment  in  the  custody  of 
the  marshal  for  three  calendar  months.2 


SECTION    7.— OFFENSES    AGAINST   TRADE. 


RESPUBLICA  v.   POWELL. 

(Supreme  Court  of  Pennsylvania,  1780.     1  Dall.  47,  1  L.  Ed.  31.) 

This  was  an  indictment  against  the  defendant,  a  baker  employed 
by  the  army  of  the  United  States,  for  a  cheat,  in  baking  219  barrels 
of  bread,  and  marking  them  as  weighing  88  pounds  each,  whereas 

i  The  indictment,  argument  of  counsel  for  the  crown,  and  concurring  opin- 
ion of  Ellenborough,  C.  J.,  are  omitted. 

2  Accord:  Selling  unwholesome  food,  Rex  v.  Dixon,  3  M.  &  S.  11  (1814) ; 
throwing  carcass  into  a  well,  State  v.  Buckman,  8  N.  H.  203,  29  Am.  Dec. 
646  (1836);  bringing  horse  infected  with  glanders  into  a  public  place,  Reg. 
v.  Henson,  1  Dears.  24  (1852) ;  selling  unwholesome  water,  Stein  v.  State,  37 
Ala.  123  (1861) ;  circulation  of  false  report  tbat  a  kidnapper  is  in  the  neigh- 
borhood, Commonwealth  v.  Cassidy,  6  Phila.  (Pa.)  82  (1SG5). 


28  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

they  only  severally  weighed  68  pounds.  The  indictment  being  orig- 
inally found  at  the  city  court,  in  October  sessions,  1779,  was  removed 
by  certiorari  into  this  court. 

And  now  Lewis  for  the  defendant,  contended  that  false  tokens 
are  only  indictable  by  St.  33  Hen.  VIII,  c.  1,  which  has  no  operation 
in  Pennsylvania,  and  he  cited  3  Burr.  1697;  1  Burn.  291;  2  Sess. 
Ca.  2. 

The  Attorney  General  (Sergeant)  insisted  that  the  defendant's  office 
was  a  public  trust,  and  cited  2  Burr.  1125;   1  Hawk.  187. 

The  Court  said  that  this  was  clearly  an  injury  to  the  public,  and 
the  fraud  the  more  easily  to  be  perpetrated,  since  it  was  the  custom 
to  take  the  barrels  of  bread  at  the  marked  weight,  without  weighing 
them  again.  The  public,  indeed,  could  not  by  common  prudence  pre- 
vent the  fraud,  as  the  defendant  was  himself  the  officer  of  the  public 
pro  hac  vice.  They  were  therefore  of  opinion  that  the  offense  was 
indictable. 


] 


STATE  v.  MIDDLETON. 

(Court  of  Appeals  of  South  Carolina,  1S38.     Dud.  275.) 

O'Neall,  J.,  delivered  the  opinion  of  the  court.1 

The  indictment  charges  the  defendant  in  three  counts,  as  follows, 
to  wit:  (1)  That  she  did  overreach.  (2)  That  she  did  cheat.  (3) 
That  she  did  defraud  one  Alexander  L.  Gregg  of  sundry  articles  of 
property,  by  passing  to  him  a  promissory  note  on  one  L.  G.  Smith 
and  John  Foxworth  for  $10,  pretending  that  it  was  of  that  value, 
and  that  the  makers  were  in  law  liable  to  pay  and  would  pay  the  same, 
when  she  in  fact  knew  that  they  were  not  liable  to  pay  and  would  not 
pay  the  same.    This  is  the  substance  of  the  charges. 

The  first  inquiry  arises,  is  any  offense  at  common  law  charged?  I 
think  it  is  very  clear  there  is  not.  It  is  a  mere  civil  injury,  for  which 
the  party  injured  might  have  his  remedy  by  action  of  deceit.  It  is 
a  mere  false  representation  of  a  thing  to  be  of  value,  which  the 
defendant  knew  to  be  valueless.  There  is  in  this  no  offense  against  the 
public.  It  is  in  its  consequences  and  effects  confined  to  the  parties 
to  the  transaction,  and  thus  at  once  shows  that  no  prosecution  at 
common  law  can  be  sustained.  The  definition  of  a  cheat  at  common 
law.  given  by  Russell,  in  his  second  volume  (139),  the  fraudulent  ob- 
taining of  property  of  another,  by  any  deceitful  and  illegal  practice 
(ir  token  (short  of  felony)  which  affects  or  may  affect  the  public, 
seems  to  give,  in  general  terms,  the  most  proper  notion  of  the  offense 
which  I  have  been  able  to  meet  with.  It  has  the  support  of  the  case 
of  Rex  v.  Wheatly,  2  Burr.  1125,  in  which  the  defendant  was  in- 
dicted for  selling  16  gallons  of  ,-imbcr,  when  it  had  been  represented 

i  Argument  of  counsel  and  part  of  the  oirnii.ni,  construing  the  act  of  179 1, 
are  omitted 


Sec.  7)  OFFENSES  AGAINST  TRADE.  29 

by  him  at  18  gallons,  and  sold  accordingly;  the  defendant  well 
knowing  that  the  true  quantity  was  1G  gallons.  It  was  held  that  this 
was  no  offense,  and  that  the  judgment  must  be  arrested.  In  that 
case  Lord  Mansfield  stated  the  rule  to  be  that  "the  offense  that  is 
indictable  must  be  such  a  one  as  affects  the  public — as  if  a  man  uses 
false  weights  and  measures,  and  sells  by  them  to  all  or  many  of  his 
customers,  or  uses  them  in  the  general  course  of  his  dealings ;  so 
if  a  man  defrauds  another  under  false  tokens.  For  these  are  decep- 
tions that  common  care  and  prudence  cannot  guard  against." 

It  is  therefore  now  necessary,  in  this  connection,  to  inquire  what 
is  a  false  token.  It  is  somewhat  difficult  to  define  with  precision,  or 
rather  to  describe,  a  false  token  in  all  cases.  Taking  the  preamble  of 
the  statute  as  our  guide,  we  would  say  it  must  be  something  false, 
and  purporting  to  come  from  one  not  the  bearer,  and  having  in  it- 
self some  private  mark  or  sign,  calculated  to  induce  the  belief  that 
it  is  real,  and  thus  to  cause  the  person  to  whom  it  is  delivered  to 
part  with  his  money  or  goods  to  the  bearer  or  person  delivering  it. 
On  looking  into  2  Russell,  1384,  I  find  the  definition  which  I  have 
given  is  substantially  that  which  he  approves.  This  would  be  enough 
for  this  part  of  the  case,  for  it  is  manifest  that  the  note  set  out  in  the 
indictment  could  not  be  a  privy  false  token,  according  to  the  defini- 
tion or  description  which  has  been  given.  But  it  may  be  well  here 
to  notice  what  is  meant  by  a  false  token  at  common  law;  for  it  will, 
perhaps,  aid  us  in  the  view  which  we  may  have  to  take  of  this  case 
under  the  act  of  1791.  It  seems  to  me  that  it  is  anything  which  has 
the  semblance  of  public  authority,  as  false  weights,  measures,  seals, 
and  marks  of  produce  and  manufactures,  false  dice,  marked  cards, 
and  things  of  a  similar  kind,  false  and  deceptive,  used  in  unlawful 
games.  2  Russ.  on  Crimes,  1368.  It  is  true,  in  looking  into  the 
books,  we  find  many  cases  of  indictment  in  which  fraud  is  an  essential 
requisite,  as  in  cases  of  common  cheat,  forgery,  and  conspiracy ;  and 
seme  confusion  has  arisen  from  such  cases  being  often  spoken  of 
under  the  general  head  of  cheats  at  common  law,  and  therefore  mingled 
with  the  offense  of  cheating  or  swindling  by  false  tokens.  But  each 
of  them  constitutes  an  independent  and  distinct  offense. 

The  motion  in  arrest  of  judgment  is  granted.2 

2  Accord:  See,  also.  Commonwealth  v.  Warren,  6  Mass.  72  (1809) ;  Rex  v. 
Havnes.  4  M.  &  S.  214  (1815);  Commonwealth  v.  Gallagher,  4  Pa.  Law  J. 
58  (1844). 


If 


■J 


30  THE    ELEMENTS    OF   CRIME.  (Ch.  2 

SECTION    8.— OFFENSES    AGAINST    PUBLIC    DECENCY. 


BELL  v.  STATE. 

(Supreme  Court  of  Tennessee,  1S51.    1  Swan,  42.) 

McKinxey,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  and  convicted  in  the  circuit 
court  of  Blount  for  the  utterance  of  certain  grossly  obscene  words 
in  public,  and  in  the  hearing  of  divers  persons,  in  the  town  of  Louis- 
ville, in  said  county.  The  different  words  alleged  to  have  been  spoken 
are  set  forth  in  three  different  counts.  This  was  necessary  to  the 
validity  of  the  indictment,  but  we  omit  to  repeat  them  here,  because 
of  their  extremely  vulgar  and  offensive  character.  It  is  sufficient 
to  state  that  they  relate  to  acts  of  criminal  intercourse  alleged  by  the 
defendant  to  have  taken  place  between  him  and  the  daughters  of 
Abraham  Hartsell,  and  to  a  loathsome  disease,  said  by  the  defendant 
to  have  been  contracted  by  him  from  the  wife  of  Hiram  Hartsell. 

Two  questions  are  presented  for  our  determination:  First,  is  the 
utterance  of  obscene  words,  in  public,  an  indictable  offense?  And, 
if  so,  secondly,  are  the  words  proved  sufficient  to  support  the  charges 
in  the  indictment? 

Upon  the  first  point  the  argument  for  the  plaintiff  in  error  rests 
upon  the  narrow  and  unsubstantial  ground  that  no  precedent  or  ad- 
judication has  been  found  in  support  of  such  an  indictment.  Ad- 
mitting this  to  be  true  for  the  present,  what  does  it  establish? 

If  the  case  stated  in  the  indictment  falls  within  the  operation  of  clear, 
well-defined,  and  well-established  principles  of  law,  is  it  to  be  urged 
against  the  maintenance  of  this  prosecution  that  no  similar  case  has 
heretofore  occurred  calling  for  the  like  application  of  such  principles? 
Surely  not,  at  this  day.  Are  not  innumerable  instances  to  be  found 
in  the  modern  Reports,  both  of  England  and  America,  in  which  the 
liberal,  enlightened,  and  expansive  principles  of  the  common  law  have 
been  adapted  and  applied  to  new  cases,  for  which  no  precedents  were 
to  be  found,  so  as  to  meet  the  ever-varying  condition  and  emergencies 
of  society?  And  this  must  continue  to  be  so,  unless  a  stop  be  put  to 
all  further  progress  of  society,  and  unless  a  stop  be  also  put  to  the 
further  workings  of  depraved  human  nature,  in  seeking  out  new  in- 
ventions to  evade  the  law. 

What,  then,  arc  the  well-established  principles  of  the  common  law 
applicable  to  the  present  case? 

The  distinguished  commentator  on  the  laws  of  England  informs 

us  that  upon  the  foundations  of  the  law  of  nature  and  the  law  of 

ation  all  human  laws  depend.    I  Bl.  Com.  42.    Thejmunjcipal  law 

looks  to  something  more  than  merely  the  protection  of  the  lives,  the 

liberty,  and  the  property  of  the  dcodIc.     Regarding  Christianity  as 


Sec.  8)  OFFENSES   AGAINST   PUBLIC   DECENCY.  31 

part  of  the  law  of  the  land,  it  respects  and  protects  its  institutions, 
and  assumes  likewise  to  regulate  the  public  morals  and  decency  of  the 
community.  The  same  enlightened  author  (1  Bl.  Com.  124)  dis- 
tinguishes between  the  absolute  and  relative  duties  of  individuals  as 
members  of  society.  He  shows  very  clearly  that,  while  human  laws 
cannot  be  expected  to  enforce  the  former,  their  proper  concern  is 
with  social  and  relative  duties;  municipal  law  being  intended  only 
to  regulate  the  conduct  of  men,  considered  under  various  relations, 
as  members  of  civil  society.  Hence  he  lays  it  down  that,  however 
abandoned  in  his  principles  or  vicious  in  his  practice  a  man  may  be, 
provided  he  keeps  his  wickedness  to  himself  and  does  not  offend 
against  the  rules  of  public  decency,  he  is  out  of  the  reach  of  human 
laws.  But,  says  the  learned  writer,  if  he  make  his  vices  public,  though 
they  be  such  as  seem  principally  to  affect  himself — as  drunkenness, 
or  the  like — they  then  become,  by  the  bad  example  they  set,  of  per- 
nicious effect  to  society;  and  therefore  it  is  then  the  business  of  hu- 
man laws  to  correct  them.     See,  also,  4  Bl.  Com.  41,  42. 

These  principles  have  been  fully  recognized  by  this  court.  In  the 
case  of  Grisham  and  Ligon  v.  State,  2  Yerg.  (Tenn.)  589,  that  thor- 
ough common  lawyer,  the  late  Judge  Whyte,  declared  that  "the  com- 
mon law  is  the  guardian  of  the  morals  of  the  people,  and  their  pro- 
tection against  offenses  notoriously  against  public  decency  and  good 
morals."  And  he  adds,  in  another  part  of  the  same  opinion:  "We 
have  the  express  authority  of  the  common  law,  as  declared  by  the 
judges  in  the  courts  of  justice,  that  all  offenses  against  good  morals 
are  cognizable  and  punishable  in  the  temporal  courts  that  are  not 
particularly  assigned  to  the  spiritual  court." 

The  books  of  reports,  both  of  England  and  this  country,  abound 
with  cases  where,  upon  these  principles  of  the  common  law,  con- 
victions have  been  enforced  for  various  offenses  against  public  mo- 
rality and  decency,  without  the  aid  of  any  statutory  enactment 
And  surely  it  can  be  no  reason  for  the  relaxation  of  these  salutary 
principles,  but  rather  the  contrary,  that  in  this  country  we  have  no 
"spiritual  court,"  to  lend  its  aid  in  the  suppression  of  the  numerous 
offenses  falling  within  the  class  now  under  consideration,  and  that 
such  of  them  as  cannot  be  reached  in  the  mode  pursued  in  the  case 
before  us  must  "go  unwhipped  of  justice." 

It  would  be  tedious  to  enumerate  the  cases  in  which  offenses  have 
been  held  indictable  as  contra  bonos  mores.  A  few  will  suffice  for 
the  present  purpose.  Public  drunkenness,  4  Bl.  Com.  41.  All  in- 
decent exposure  of  one's  person  to  the  public  view,  Id.  65,  note  25. 
In  the  case  of  Rex  v.  Crunden,  2  Campb.  89,  1  Russ.  on  Crimes,  302, 
it  was  held  an  indictable  offense  to  bathe  in  the  sea  near  inhabited 
houses,  from  which  the  person  might  be  seen,  although  the  houses 
had  been  recently  erected,  and  previously  thereto  it  had  been  used 
for  persons  in  great  numbers  to  bathe  at  such  place.  And  it  was  so 
held  for  the  reason  "that,  whatever  place  becomes  the  habitation  of 
civilized  men,  there  the  laws  of  decencv  must  be  enforced." 


32  THE   ELEMENTS   OF   CRIME.  (Ch.  2 

These  adjudications,  without  citing  others,  we  think  furnish  an- 
alogies sufficiently  strong  to  sustain  the  present  prosecution.  Are 
the  outrageously  yulgar  and  obscene  words  found  in  this  record,  if 
uttered  in  the  ear  of  the  public,  less  likely  to  shock  any  one's  sense 
of  decency,  and  to  corrupt  the  morals  of  society — not  to  speak  of 
their  inevitable  tendency  to  provoke  violence  and  bloodshed — than 
the  offenses  charged  in  the  several  adjudicated  cases  above  cited?  It 
does  not  so  appear  to  us.  But,  were  there  no  analogy  to  be  drawn 
from  any  decided  case,  we  hold  that,  upon  the  broad  principles  of  the 
common  law  which  we  have  stated,  this  prosecution  is  most  amply 
sustained.  Thus  fortified  by,  sound  principles — principles  which  lie  at 
the  foundation  of  every  well-regulated  community — (and  resting  on 
a  basis  so  immutable)  we  are  the  more  indifferent  as  to  precedents 
exactly  in  point.1 

Let  the  judgment  be  affirmed.2 


STATE  v.  WILLIAMS. 

(Superior  Court  of  Tennessee,  1808.    2  Over.  108.) 

Indictment  in  the  county  court  for  eavesdropping.  Appeal  to  this 
court,  and  the  only  question  was  whether  such  a  prosecution  can  be 
maintained. 

It  was  insisted  for  the  defendant,  first,  that  there  was  no  statute  of 
the  state  upon  the  subject;  second,  that  the  act  which  adopted  the 
laws  of  England  confined  such  adoption  to  such  as  are  consistent  with 
our  mode  of  living.  St.  1715,  c.  31,  §  5.  No  precedent  can  be 
found  of  such  an  indictment,  which  furnishes  a  strong  inference  that 
such  a  prosecution  was  not  conformable  to  the  principles  of  our  gov- 
ernment, or  modes  of  living. 

By  the  Court  (Powell,  J.,  and  Overton,  J.,  absent) — Campbell, 
J.  Agreeably  to  the  common  law,  such  an  indictment  well  lies,  and 
nothing  can  be  seen  in  this  part  of  it  which  is  inconsistent  with  our 
situation,  or,  in  fact,  the  situation  of  any  society  whatever.3 

i  Part  of  l lie  «':isc>  is  omitted. 

•  Accord:     Barker  v.  C monwealth,  in  Pa.  -112  (1852);    State  v.  Appling, 

•^r,  Mo,  315,  «'>'.i  Am.  i ».-.-.  469  (1857);  exhibition  of  Indecenl  picture,  Com- 
monwealth v.  Sharpless,  2  Serg.  &  R.  (Pa.)  91,  7  Am.  Dec  <;:;'j  (1815);  in- 
decent  exposure  of  person,  Britain  v.  State,  ::  Humph.  (Tenn.)  203  (1842); 
Commonwealth  v.  Spratt,  n  Phila.  (Pa.)  :'.»',;.  (1880);  cf.  Reg.  v.  Watson,  2 
0.  C.  376  (1847);  night  walking,  State  v.  Dowers,  15  X.  H.  543  (1864); 
immon  gaming  bouse.  People  v.  Jackson,  :'•  Denio  (N.  v.)  101,  45 
Am.  !)•■<•.  449  (1846);  exhuming  body  f«>r  dissection,  Res  7.  Lynn,  2  T.  R. 
t::::  (1788);  sodomy,  Commonwealth  v.  Thomas,  1  Va.  Oas.  S07  (1812);  keep- 
ing of  leasing  bouse  for  Immoral  purposes,  People  v.  Brwln,  I  Denio  (N.  v.i 
iu:>  (1847);  compare  Commonwealth  v.  Linn,  L58  I'm.  22,  27  All.  Si:!.  22 
I..  K.  A    853  I  L893), 

cord:  Common   Bcold,   James   v.   Commonwealth,    12  Berg.   &   R.   (Pa.) 
325);   Commonwealth  v.  Lovett,  r,  I'm.  Law  J.  22c  (1831);    State  v.  Pen- 
ning! fl  (Tenn.)  299,  75  Am.  Dec.  771  (1859). 


Sec.  8)  OFFENSES   AGAINST   PUBLIC    DECENCY.  33 

ANDERSON  v.  COMMONWEALTH. 

(General  Court  of  Virginia,  182G.     5  Rand.  627.  16  Am.  Dec.  776.) 

The  indictment  against  the  plaintiff  in  error  contained  two  counts, 
the  first  of  which  charged  that  he,  being  a  married  man,  on  the  22d 
November,  1825,  in  the  said  county  of  Chesterfield,  one  Elizabeth 
F.  Hargrove,  a  maiden  and  unmarried,  and  under  the  age  of  21  years, 
that  is  to  say,  of  the  age  of  16  years  2  months  19  days,  having  no 
father  living,  and  being  then  and  there  under  the  care  and  custody  of 
Elizabeth  Hargrove,  a  widow,  her  mother,  did  entice,  inveigle,  take, 
and  carry  away  from  the  care  and  custody  of  her  said  mother,  for  the 
purpose  of  prostituting  and  carnally  knowing  her,  the  said  Elizabeth 
F.,  against  the  peace  and  dignity  of  the  commonwealth.  The  second 
count  in  like  manner  charges  him  with  the  enticing,  inveigling,  taking, 
and  carrying  away  the  said  infant  over  the  age  of  16  years,  and, 
moreover,  charges  that  he  did,  on  a  subsequent  day,  deflower,  car- 
nally know,  and  prostitute  her,  the  said  Elizabeth  F.  Hargrove, 
against  the  peace  and  dignity  of  the  commonwealth. 

Dade,  ].,  delivered  the  opinion  of  the  court. 

The  question  is  whether  the  offense  of  which  the  plaintiff  has  been 
convicted,  and  had  judgment,  is  a  misdemeanor,  punishable  by  indict- 
ment at  the  common  law. 

The  class  of  misdemeanors  within  which  it  is  insisted  this  offense 
is  comprehended  is  that  of  offenses  contra  bonos  mores,  over  which  the 
Court  of  King's  Bench  in  England,  and  the  superior  courts  of  law  of 
this  commonwealth,  have  always  claimed  to  have  jurisdiction.  It  is 
admitted  that  before  the  statute  of  circumspecte  agatis  (St.  13  Ed- 
ward I),  the  Court  of  King's  Bench  did  on  this  principle  punish  the  of- 
fense of  incontinency,  and  that  by  that  statute  the  jurisdiction  was 
transferred  to  the  ecclesiastical  courts.  It  may  be  well  doubted  wheth- 
er the  King's  Bench  before  the  statute,  or  the  Courts  Christian  since, 
looked  beyond  the  simple  fact  of  incontinence,  as  that  offense  is  at 
present  contemplated  and  punished  by  our  own  acts  of  assembly;  in 
other  words,  whether  they  looked  beyond  the  mere  offense  of  incon- 
tinence, as  consisting  in  the  single  act  of  cohabitation  between  per- 
sons of  different  sexes  without  the  rites  of  marriage,  not  varied  by 
any  fraud,  deception,  or  inveiglement  which  may  have  been  practiced 
by  the  man.  But  after  the  statute  of  circumspecte  agatis  the  Court  of 
King's  Bench  did  not  exercise  jurisdiction  in  punishing  the  mere  act 
of  incontinence.  It,  however,  retained  its  general  power  of  punishing 
offenses  contra  bonos  mores,  and  it  is  presumed  might  have  punished 
an  offense  of  incontinence,  combined  with  circumstances  which,  be- 
yond the  mere  criminality  of  the  simple  fact,  were  calculated  to  make 
it  injurious  to  society,  as  in  case  of  incontinence  in  a  street  or  highway. 
But  in  such  cases  the  jurisdiction  would  not  spring  from  the  criminal 
character  of  the  simple  fact,  but  from  its  publicity;  as  there  are  many 
Mik.Cr.L.— 3 


34  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

cases  where  an  act,  which  is  not  criminal  in  private,  becomes  penal  by 
the  publicity  which  attends  it  perpetration.  The  act  of  Sir  Charles 
Sedley  in  running  naked  through  the  streets  derived  its  whole  crim- 
inality from  its  publicity.  It  is  not,  therefore,  in  this  case  allowable  to 
connect  the  criminality  of  the  mere  act  of  incontinence,  which,  as  such, 
is  punishable  in  a  certain  mode  prescribed  by  the  statute,  with  the 
particular  circumstances  of  fraud  and  deception,  and  the  special  in- 
jury to  the  female,  so  as  to  make  the  supposed  common-law  offense 
(as  the  courts  might  entertain  it  in  England,  since  the  statute  of  cir- 
cumspecte  agatis)  derive  support,  or  even  acquire  being,  from  the  stat- 
utory offense.  If  the  statutory  misdemeanor  of  simple  incontinence 
is  to  be  punished,  it  must  be  according  to  the  statute.  If  there  be  other 
circumstances  in  the  case  which  entitle  the  common-law  courts  to  ju- 
risdiction, those  circumstances  must  of  themselves  constitute  a  misde- 
meanor. By  these  principles  the  only  two  reported  cases  in  the  Eng- 
lish books  are  to  be  tested.  The  case  of  Rex  v.  Lord  Grey  and  Oth- 
ers, 9  State  Trials  (Cobbet's  Ed.)  127,  was  that  of  an  information  al- 
leging a  conspiracy  to  take  away  and  debauch  a  maiden  over  the  age 
of  16  and  under  21,  and  an  accomplishment  of  the  act  by  those  means. 
This  conspiracy  is  emphatically  charged  in  the  information,  and  as  it 
was  to  do  a  wrongful  act,  for  which,  certainly,  if  done,  an  action  lay 
to  the  father  of  the  maid,  the  conspiracy,  if  proved,  clearly  amounted 
to  a  common-law  misdemeanor.  So,  in  the  Case  of  Sir  Francis  Blake 
Delaval  and  Others,  3  Burr.  1432,  which  was  "a  motion  for  an  infor- 
mation against  the  defendants  for  a  conspiracy  to  put  a  young  girl  in- 
to the  hands  of  a  gentleman  of  rank  and  fortune,  for  the  purpose  of 
prostitution,"  although  Lord  Mansfield,  in  allowing  the  motion,  in- 
timates an  opinion  that  the  Court  of  King's  Bench  might  have  juris- 
diction of  the  case,  as  one  contra  bonos  mores,  yet  he  decides  it  on  the 
ground  that  there  was  in  that  case  "a  conspiracy  and  confederacy," 
which,  says  he,  "  are  clearly  and  indisputably  within  the  proper  juris- 
diction of  this  court."  Without  doubt,  in  these  cases,  the  court  hav- 
ing jurisdiction  of  them  on  undeniable  common-law  principles,  the 
punishment  in  case  of  conviction  might  well  be  aggravated  by  the  base- 
ness, perfidy,  or  malignity,  which  was  the  motive  and  end  of  the  con- 
spiracy. In  like  manner,  as  in  trespass,  circumstances  may  aggravate 
the  damages,  which  would  not  of  themselves  alone  support  the  action. 
But  clearly  neither  of  these  cases  does  maintain  the  position  that,  as 
a  common-law  misdemeanor,  an  indictment  or  information  will  lie, 
either  for  simple  incontinence,  or  for  incontinence  produced  by  means 
of  deception,  inveiglement,  or  enticement;  in  other  words,  by  seduc- 
tion. 

It  is  too  lale  now  to  assume  jurisdiction  over  a  new  class  of  cases, 
under  the  rdea  of  their  being  contra  bonos  mores.  We  must  consider 
the  practice  of  the  English  courts;  from  which  we  derive  the  principle, 
a  having  settled  in  the  cour  «•  of  many  centuries  the  true  limits  and 
proper  subjects  of  this  principle.     If  we  are  to  disregard  these  land- 


Sec.  8)  OFFENSES  AGAINST  PUBLIC  DECENCY.  35 

marks,  and  take  up  any  case  which  may  arise  under  this  principle  as 
res  integra,  then  might  it  be  extended  to  cases  which  none  has  yet 
thought  of  as  penal.  A  case  of  slander  may  display  as  much  baseness 
and  malignity  of  purpose,  as  much  falsehood  in  its  perpetration,  as 
ruinous  effects  in  its  consequences,  and  as  pernicious  an  example  in  its 
dissemination,  as  this  case  of  seduction.  And  yet  none  would  think  of 
prosecuting  it  criminally.  It  is  true  that  if  something  peculiar  in  our 
situation  had  given  rise  to  a  class  of  cases  contra  bonos  mores,  as  in 
regard  to  our  slaves,  which  could  not  have  existed  in  England,  we 
might  be  justified  in  applying  the  rule  in  the  absence  of  all  precedent. 
But  in  relation  to  seduction  no  such  supposition  can  be  made,  as  we 
know  from  the  books  of  Reports  that  many  such  cases  have  occurred 
there.  And  we  even  see  that  in  two  cases  it  was  in  fact  the  prominent 
feature,  and  yet  the  jurisdiction  in  one  of  them  was  made  to  hang  on  an- 
other hinge,  and  in  the  other,  which  was  never  decided,  was  certainly 
fortified  by  the  allegation  and  proof  of  a  common-law  misdemeanor. 

From  these  premises  it  would  seem  to  be  proper  to  infer  that,  since 
the  statute  of  circumspecte  agatis,  in  England,  the  common-law  courts 
have  never  taken  jurisdiction  of  the  mere  offense  of  incontinence,  nor 
of  any  offense  of  incontinence  combined  with  other  reprehensible  cir- 
cumstances, not  in  themselves  importing  a  common-law  misdemeanor ; 
that  in  this  country  the  Legislature  has  taken  up  the  subject  of  simple 
fornication  and  adultery,  and  has  defined  a  precise  mode  of  proof,  and 
a  fixed  and  certain  punishment ;  that  there  is  no  reason  to  believe  that 
these  statutes  are  cumulative,  but  that  they  occupy  the  whole  ground; 
and  that,  as  in  England,  the  offense,  being  merely  spiritual,  is  not  un- 
der any  circumstances  allowed  to  be  the  foundation  of  a  criminal  prose- 
cution in  the  courts  of  common  law ;  so  here,  by  parity  of  reasoning, 
the  offense  being  entirely  statutory,  it  shall  not  be  converted  into  the 
foundation  of  a  common-law  misdemeanor. 

If  these  premises  and  deductions  be  true,  we  must  throw  out  of  this 
case  the  statutory  criminality  of  the  mere  act  of  incontinence,  and  then 
we  cannot  support  the  indictment,  unless  the  other  circumstances 
amount  to  a  common-law  misdemeanor.  If  they  had  made  out  a  case 
of  conspiracy,  that  desideratum  would  have  been  supplied.  But  it  is 
not  found  in  the  artifices  and  contrivances  which  may  have  been  used 
in  alluring  the  female  from  the  path  of  virtue  and  the  home  of  her  par- 
ent. 

For  these  reasons,  the  court  is  of  opinion  that  the  judgment  of  the 
superior  court  of  Chesterfield  be  reversed,  and,  this  court  proceeding 
to  give  such  judgment  as  the  said  superior  court  ought  to  have  render- 
ed, it  is  further  considered  that  of  the  offense  of  which  the  said  Samuel 
Anderson  hath  been  indicted,  and  convicted,  he  be  acquitted  and  dis- 
charged, and  that  he  go  thereof  without  day.1 

i  Accord:  State  v.  Branson,  2  Bailey  (S.  C.)  149  (1831);  State  v.  Cooper, 
16  Vt  551  (1844).    Cf.  State  v.  Cagle,  2  Humph.  (Tenn.)  414  (1841). 


36  THE   ELEMENTS  OF   CRIME.  (Ch.  2 

SECTION   9.— EFFECT  OF  CONSENT,  CONDONATION, 

ETC. 

I.  Consent  of  the  Person  Injured. 


V  , 


STATE  v.  BECK. 

(Supreme  Court  of  South  Carolina,  1833.     1  Hill,  3G3,  2G  Am.  Dec.  100.) 


Tried  before  Mr.  Justice  Richardson,  at  Pickens,  fall  term,  1833. 

Indictment  for  an  assault  and  battery.  The  defendants  were  all  ac- 
quitted, except  William  Beck.  The  facts  were  these:  One  of  the 
defendants  had  lost  leather,  and,  suspecting  it  was  stolen,  got  Beck 
and  the  other  defendants  to  aid  him  in  the  search.  They  found  the 
leather  on  the  premises  of  Noble  Anderson,  and  immediately  took  him 
into  custody — whether  under  warrant  or  not,  did  not  appear.  Whilst 
in  this  state,  SQine__ori£^_iiQt  Beck,  asked  Anderson  if  he  would  not 
rather  be  whipped  than  gcTto  jail.  Pie  replied  he  would,  and  then  rgr. 
quested  Beck  to  whip  him.  Heck  at  first  hesitated,  but  finally  at  the 
e*afnest  entreaty  of  Anderson,  and  saying,  "If  it  will  oblige  you,  I  will 
do  it,"  consented ;  and,  Anderson  putting  his  arms  around  a  tree,  he 
gave  him  a  few  stripes  with  a  switch.  Anderson  was  then  released, 
but  was  afterwards  prosecuted,  convicted,  and  punished  for  stealing 
the  leather.  Under  these  circumstances  the  presiding  judge  charged 
the  jury  that  Beck  was  clearly  guilty,  and  they  found  accordingly.  He 
now  moves  for  a  new  trial,  on  the  ground  that  the  whipping,  having 
been  inflicted  at  the  importunity  of  Anderson  and  against  the  inclina- 
tion of  the  defendant,  was  not  an  assault  and  battery. 

Harper,  J.  We  do  not  think  the  act  in  question  amounts  to  an  as- 
sault and  battery  on  the  part  of  defendant  Beck.  A  battery  is  general- 
ly defined  to  be  any  injury  done  to  the  person  of  another  in  a  rude,  in- 
solent, or  revengeful  way.  There  is  also  another  class  of  cases  where 
some  degree  of  negligence  may  be  imputed ;  as  when  a  person  throw- 
ing stones  into  the  highway  strikes  another  passing,  or  as  in  the  in- 
stance of  a  person  throwing  a  lighted  squib  intoli  crowd.  But  when 
there  is  no  intention  to  injure  and  no  negligence,  I  do  not  think 
the  offense  can  be  imputed.  An  instance  commonly  put  is  that  of  a 
soldier  tiriii  <  ce  at  muster,  and  without  any  fault  of  his  own  in- 

juring another  casually  and  suddenly  passing  before  it.  A  surgeon, 
who  for  his  patient's  health,  cuts  off  a  limb,  is  not  guilty  of  mayhem; 
or,  if  one  plucks  a  drowning  man  out  of  a  river  by  the  hair  of  his  head, 
this  is  no  assault.  If,  according  to  the  prescription  of  the  physician  in 
the  Arabian  Nights,  a  physician  should  beat  his  patient  with  a  mallet 
for  the  bona  fide  purpo  e  of  restoring  his  health,  though  this  mighl  be 
malpractice,  it  would  be  no  battery.    Where  one  gave  another  a  license 


4^     ^  irjrt  r  0<JJk*r** 


J 


Sec.  9)  EFFECT   OF   CONSENT,  CONDONATION,   ETC.  37 

to  beat  him,  there  is  a  case  in  which  it  is  said  the  license  was  held  void.' 
This  may  well  be.     The  person  receiving-  the  license  entertained  hos- 
tile  dispositions   toward   the   other,    and,   upon   being   thus   licensed, 
proceeded  to  carry  his  revengeful  purpose  into  effect.    But  m  the  case 
before  us  the  defendant  had  no  evil  disposition  toward  Anderson  buf- 
the  contrary;   and  at  his  own  earnest  request,  and-  to  save,  him  from- 
what  he  considered  a~gTeater_evdl»  reluctantly:  cojisentedlo-inflict  the 
stripes.     However  ill-judged-the  act  may  have  been,  j^cannot  think  it 
_constituted  an^ssault  jiniLbattery.     The  case  might  be  different  with 
respect  to  the  other  defendants,  who  were  acquitted ;  but  as  to  the  de- 
fendant before  us  the  motion  for  a  new  trial  must  be  granted. 
Johnson  and  O'Neall,,  JJ.  concurred. 


CHAMPER  v.  STATE. 

(Supreme  Court  of  Ohio,  18G3.     14  Ohio  St.  437.) 

Error  to  the  Court  of  Common  Pleas  of  Carroll  County. 

By  the  Court.  Held,  an  indictment  against  A.  for  an  assault 
and  battery  upon  B.  is  not  sustained  by  evidence  that  A.  assaulted  and 
beat  B.  in  a  fight  at  fisticuffs,  by  agreement  between  them. 

An_assault  and  battery  and  an  affray  are  distinct  offenses  under  the 
statute,  punishable  by  different  penalties.1 

Judgment  reversed  and  cause  remanded. 


REGINA  v.  CONEY. 

(Queen's  Bench  Division,  1882.    8  Q.  B.  Div.  534.) 

Hawkins,  J.2  At  Ihe  Berkshire  October  Quarter  Sessions,  1881, 
the  defendants  were  convicted  under  the  direction  of  Mr.  Benyon,  the 
chairman,  upon  two  counts  of  an  indictment.  One  charged  them  with 
an  assault  upon  Charles  Mitchell,  the  other  with  an  assault  upon  John 
Burke ;  Mitchell  and  Burke  being  the  combatants  in  a  fight  which  took 
place  at  Ascot,  on  the  16th  of  June,  1881.  The  facts  are  fully  set  forth 
in  the  case  reserved  for  the  opinion  of  the  Court  of  Criminal  Appeal. 

Two  questions  were  argued  before  us :  First,  whether  the  combat- 
ants were  guilty  of  assaults  upon  each  other;  and,  secondly,  whether 
the  defendants  were  aiders  and  abettors  in  the  fight,  and  therefore  also 
rightly  convicted.  Upon  the  first  question  the  defendants'  counsel 
contended  that,  each  of  the  combatants  having  assented  to  the  fight, 

i  Accord:    Duncan  v.  Commonwealth,  6  Dana  (Ky.)  295  (1S38). 

2  Part  of  the  opinion,  relating  to  another  point,  is  omitted,  as  are  also 
the  concurring  opinions  of  Cave,  Matthew,  Stephen,  Manisty,  Pollock,  and 
Denman,  JJ.,  and  Coleridge,  C.  J. 


38  THE    ELEMENTS   OF    CRIME.  (Ch.  fc 

neither  could  be  convicted  of  an  assault  upon  the  other.    To  this  con- 
tention I  cannot  give  my  sanction.    As  a  general  proposition  it  is  un- 
doubtedly true  that  there  can  be  no  assault  unless  the  act  charged  as 
such  be  done  without  the  consent  of  the  person  alleged  to  be  assaulted, 
for  want  of  consent  is  an  essential  element  in  every  assault,  and  that 
which  is  done  by  consent  is  no  assault  at  all.    Christopherson  v.  Bare, 
11  Q.  B.  473;  Reg.  v.  Guthrie,  L.  R.  1  C.  C.  R.  241,  243,  and  numer- 
ous other  cases.     It  may  be  that  consent  can  in  all  cases  be  given  so 
as  to  operate  as  a  bar  to  a  civil  action,  upon  the  ground  that  no  man 
can  claim  damages  for  an  act  to  which  he  himself  was  an  assenting 
party.    Christopherson  v.  Bare.    That  case,  however,  was  decided  upon 
a  point  of  pleading,  and  must  not  be  considered  as  a  direct  authority 
on  this  subject.     It  is  not  necessary,  however,  upon  the  present  occa- 
sion, to  express  any  decided  opinion  upon  the  point;    for,  whatever 
may  be  the  effect  of  a  consent  in  a  suit  between  party  and  party,  it  is 
not  in  the  power  of  any  man  to  give  an  effectual  consent  to  that_which 
amounts  to,  or  has  a  direct  tendency  to  create,  a  breach  of  the  peace, 
so  as  to  bar  a  criminal  prosecution.     In  other  words,  though  a  man 
may  by  his  consent  debar  himself  from  his  right  to  maintain  a  civil  ac- 
tion, he  cannot  thereby  defeat  proceedings  instituted  by  the  Crown  in 
the  interests  of  the  public  for  the  maintenance  of  good  order.     Per 
Burrough,  J.,  in  Rex  v.  Belingham,  2  C.  &  P.  234.    He  may  compro- 
mise his  own  civil  rights,  but  he  cannot  compromise  the  public  interests. 
Nothing  can  be  clearer  to  my  mind  than  that  every  fight,  in  which 
the  object  and  intent  of  each  of  the  combatants  is  to  subdue  the  other 
by  violent  blows,  is,  or  has  a  direct  tendency  to,  a  breach  of  the  peace, 
and  it  matters  not,  in  my  opinion,  whether  such  fight  be  a  hostile  fight 
begun  and  continued  in  anger,  or  a  prize  fight  for  money  or  other  ad- 
vantage.    In  each  case  the  object  is  the  same,  and  in  each  case  some 
amount  of  personal  injury  to  one  or  both  of  the  combatants  is  a  prob- 
|  able  consequence,  and,  although  a  prize  fight  may  not  commence  in  an- 
ger, it  is  unquestionably  calculated  to  rouse  the  angry  feelings  of  both 
Fore  its  conclusion.    I  have  no  doubt,  then,  that  every  such  fight  is 
illegal,  and  the  parties  to  it  may  be  prosecuted  for  assaults  upon  each 
■r.     Many  authorities  support  this  view.    In  Rex  v.  Ward,  1  East, 
P.  C.  270,  theprisoner  was  tried  for  the  slaughter  of  a  man  whom  he 
had  killed  in  a  fight  to  which  he  had  been  challenged  by  the  deceased  for 
a  public  trial  of  skill  in  boxing.    No  unfairness  was  suggested,  and  yet 
it   was  held  that  the  prisoner  was  properly  convicted.     To  the  same 
effeel  i    the  case  of  Reg.  v.  Lewis,  1  C.  &  K.  419,  in  which  Coleridge, 
J.,  said  :   "When  two  persons  go  out  to  strike  each  other,  each  is  guilty 
ofai  lit."    See,  also,  Reg.  v.  Hunt,  1  Cox,  C.  C.  177,  per  Alderson, 

B.;  Keg.  v.  Brown,  l  C.  &  M  33  1.  by  the  same  learned  Baron;  and 

tnwell,  r...  in  Reg.  v.  Young,  in  Cox,  C.  C.  371. 
"  '|'h,  which  h  has  been  held  thai  persons  may  lawfully  en- 

gage in  friendly  em  nol  calculated  to  produce  real  injury,  br 

to  cause  angry  passion-;  in  either,  do  not  in  the  least  militate  agajnst 


Sec.  9)  EFFECT   OF   CONSENT,  CONDONATION,  ETC.  39 

the  view  I  have  expressed;  for  such  encounters  are  neither  breaches 
of  the~peace,  nor  are  they  calculated  to  be  productive  thereof.  But  if, 
under  color  of  a  friendly  encounter,  the  parties  enter  upon  it  with,  or 
in  the  course  of  it  form,  the  intention  to  conquer  each  other,  by  vio- 
lence calculated  to  produce  mischief,  regardless  whether  hurt  may  be 
occasioned  or  not,  as,  for  instance,  if  two  men,  pretending  to  engage 
in  an  amicable  spar  with  gloves,  really  have  for  their  object  the  inten- 
tion to  beat  each  other  until  one  of  them  be  exhausted  and  subdued  by 
force,  and  so  engage  in  a  conflict  likely  to  end  in  a  breach  of  the  peace, 
each  is  liable  to  be  prosecuted  for  an  assault.  Reg.  v.  Orton,  39  L.  T. 
293.  Whether  an  encounter  be  of  the  character  I  have  just  referred 
to,  or  a  mere  friendly  game,  having  no  tendency,  if  fairly  played,  to 
produce  any  breach  of  the  peace,  is  always  a  question  for  the  jury  in 
case  of  an  indictment,  or  the  magistrates  in  case  of  summary  proceed- 
ings. 

The  cases  cited  of  alleged  indecent  assaults  on  young  children  by 
their  consent  are  no  authorities  to  the  contrary,  and  may  all  be  dis- 
posed of  in  this  one  observation,  viz.,  that  the  indecent  impositions  of 
hands  charged  in  those  cases  as  assaults  neither  involved,  nor  were 
calculated  to  involve,  breaches  of  the  peace,  and  therefore,  being  by 
consent,  were  not  punishable  as  assaults,  any  more  than  they  would 
have  been  had  the  objects  of  them  been  for  the  most  innocent  purposes. 
I  think  it  wholly  immaterial  in  considering  cases  of  this  description  to 
inquire  by  whom  the  first  blow  was  struck,  for,  as  was  said  by  Lindley, 
J.,  in  Reg.  v.  Knock,  14  Cox,  C.  C.  1,  "the  right  of  self-defense  does 
not  justify  counter  blows  struck  with  a  desire  to  fight." 

Upon  the  ruling  of  the  chairman  as  to  the  illegality  of  the  fight,  I 
entertain,  therefore,  no  manner  of  doubt,  and  I  am  clearly  of  opinion 
that  the  combatants  themselves  were  each  guilty  of  an  assault  upon 
each  other.2 


BARTELL  v.  STATE. 

(Supreme  Court  of  Wisconsin.    106  Wis.  342,  82  N.  W.  142.) 

Error  to  review  a  judgment  rendered  on  a  conviction  of  the  plain- 
tiff in  error,  King  Bartell,  of  the  offense  of  assault  and  battery.  Bar- 
tell  claimed  to  be  a  magnetic  healer,  in  the  regular  practice  of  his  pro- 
fession. He  treated  a  young  girl,  about  18  years  of  age,  the  person 
upon  whom  the  offense  was  committed,  at  her  request  and  with  the 
sanction  of  her  father.  The  girl  was  ignorant  of  what  was  necessary 
on  her  part  in  receiving  the  massage  treatment,  which  was  Bartell's 
method  of  operating.  She  was  afflicted  with  some  nervous  trouble. 
Bartell  went  into  a  room  with  her,  caused  her  to  remove  all  of  her  cloth- 

2  Accord:  Commonwealth  v.  Collberg,  119  Mass.  350,  20  Am.  Rep.  32S 
(1875);  State  v.  Burnbam.  56  Vt.  445,  4S  Am.  Rep.  SOI  (1SS4) ;  State  V. 
Newlaud,  27  Kan.  764  (18S2). 

jU*  oil 


40  THE    ELEMENTS   OF    CRIME.  (Ch.  2 

ing,  and  then,  while  her  naked  body  was  wholly  exposed  to  his  view,  he 
gave  her  a  massage  treatment  lasting  some  15  minutes.  The  evidence 
tended  to  show  that  after  the  treatment  aforesaid  Bartell  caused  the 
girl  to  sit  on  his  lap  and  that  he  took  some  indecent  liberties  with  her. 

Marshall,  J.1  Some  criticism  is  made  of  the  instructions  given 
to  the  jury,  but  we  are  unable  to  discover  any  harmful  error  in  them. 
The  jury  were  told,  in  substance,  and  in  language  that  could  not  rea- 
sonably have  been  misunderstood,  that  if  Bartell  treated  his  patient 
in  good  faith,  for  the  purpose  of  curing  the  disease  with  which  she 
was  supposed  to  be  afflicted,  and  in  good  faith  caused  her  to  expose 
her  body  to  his  view  for  the  purposes  of  such  treatment,  his  conduct 
did  not  constitute  the  offense  of  assault  and  battery;  but  if.  on  the_oth- 
er  hand,  he  needlessly  caused  such  patient  to  expose  her  person  to  his 
view  for  his  evil  purposes,  and  she  submitted  because  of  her  ignorance, 
and  under  those  circumstances  and  for  such  purpose  he  secured  the 
opportunity  of  laying  his  hands  upon  her  body,  he  was  guilty  of  the 
offense  of  assault  and  battery.  There  was  no  error  in  the  charge  so 
understood. 

The  judgment  of  the  municipal  court  is  affirmed.2 


SPEIDEN  v.  STATE. 
(Court  of  Appeals  of  Texas,  1S77.    3  Tex.  App.  156,  30  Am.  Rep.  120 ) 

Burglary. 

White,  J.8  As  disclosed  in  the  record,  the  facts  are  substantially 
as  follows : 

Pinkerton's  Detective  Agency,  at  Chicago,  111.,  obtained,  by  some 
means,  a  number  of  letters  and  postal  cards  written  by  the  defendant 
from  Dallas,  to  a  friend  in  Chicago,  urging  him  to  come  to  Dallas  and 
join  him  in  breaking  into  and  robbing  some  of  the  banks  in  the  latter 
city.  It  appears  that  Pinkerton  forwarded  those  letters  to  John  Kerr,  a 
banl  er  of  Dallas,  who  immediately  called  a  meeting  of  the  bankers  of 
the  city  and  submitted  the  matter  to  them.  The  result  of  this  meeting 
was  that  the  bankers  requested  Pinkerton  to  send  a  detective  to  Dallas  to 

i  Part  of  this  case  Is  omitted. 

2  Accord:  Rei  v.  Roslnski,  l  Moody,  19  (1824).  In  England,  on  Indictments 
for  the  carnal  knowledge  of  female  children  or  for  Indecenl  assaults,  the 
eonsenl  of  the  child  Is  held  to  be  a  defense.  Reg.  v.  Martin,  9  0.  &  P.  213 
(1839).    in  the  United  States,  generally,  :i  different  doctrine  prevails.     Singer 

\.  People,  L3  Hun  (N.  v.)  418  (1878);  Com nwealth  v.   Roosnell,  143 

82,  8  N.  I-:,  tit  (1886);  People  v.  Stewart,  86  Cal.  174,  24  Pac.  722  (1890), 
But  mere  submission  is  no1  consent  Reg.  v.  Pay,  9  C.  &  P.  l'2'2  (1841); 
I  Lock,  2  Cr.  Cas.  Res.  10  (1872). 

When  eonsenl  is  held  to  be  a    Justification,  force  in   malicious  excess  of 
the  eonsenl  will  take  away  its  Justifying  effect     Richie  v.   stale,  58   Ind 
L877). 

*  only  so  much  of  the  opinion  as  relates  to  consent  is  printed 


ffo, 


4-  <ktf*XVKJ^u  t**H         I 


Sec.  9)  EFFECT  OF  CONSENT,  CONDONATION,  ETC.  41 

work  up  the  case.  Deroso,  a  sergeant  of  Pinkerton's  force,  carrie,  and, 
after  an  interview  with  the  bankers,  sent  back  to  Chicago  for  Wood  and 
McGuire,  two  detective  aids  who  were  to  represent  themselves  to  the 
defendant  as  professional  burglars  and  induce  him  to  enter  some  bank 
building  in  the  nighttime,  when  they  would  procure  his  arrest. 

After  the  arrival  of  Wood  and  McGuire  they  set  to  work  to  carry 
out  .this  plan,  keeping  in  constant  communication  with  Deroso,  and, 
through  him,  with  the  bankers,  who  were  kept  constantly  informed 
as  to  the  plans  and  movements  of  the  parties.  Finally  it  was  agreed 
on_all  hands  that  the  banking  house  of  Adams  &  Leonard  should  be 
broken  into  on  Sunday-  night.  Adams  &  Leonard  agreed  to  the  ar- 
rangement, and  the  detectives  were,  in  the  adventure,  working  in  their 
employ. 

Pursuant  to  the  plan  agreed  upon,  Deroso,  Hereford,  a  deputy  sher- 
iff of  Dallas  county,  a  Mr.  Mixon,  United  States  deputy  marshal,  and 
another  party  entered  and  took  possession  of  the  bank  during  the  day- 
time, about  2  or  3  o'clock  on  Sunday,  to  remain  therein  until  the  burg- 
lary was  effected  and  the  defendant  was  arrested.  About  1  o'clock  at 
night  the  back  door  of  the  bank  was  forced  open  b^_th^two_delectives, 
Wood  and  McGuire,  who  came  in,  spoke  to  the  concealed  parties,  and 
went  into  the  vault,  when,  after  remaining  about  an  hour,  Wood  went 
out,  told  Speiden,  the  defendant,  that  they  wanted  more  help,  and  re- 
turned in  a  short  time,  and,  coming  in,  closed  the  door  after  him.  In 
a  minute  or  two  Speiden  came  in  and  closed  the  door,  when  the  officers 
arrested  him. 

Now,  as  to  the  law  of  the  case :  To  our  minds  it  is  clear  that  Deroso  | 
and  the  other  detectives  were  the  servants  and  agents  of  Adams  & 
Leonard,  and  had  full  authority  to  consent  to  defendant's  entry  into 
the  bank,  and  that  his  entry  was  not  only  with  their  consent,  but  at  their 
solicitation.  The  case  is  somewhat  like  that  of  a  man  being  robbed  by 
his  own  consent,  although  the  supposed  robbers  did  not  know  of  the 
consent.    Reanes'  Case,  2  East,  734;  McDaniel's  Case,  Fost.  121. 

In  Tennessee,  where  the  prisoner  had  arranged  with  a  negro,  dur- 
ing the  days  of  slavery,  to  steal  him,  and  the  negro  informed  his  mas- 
ter, who  told  him  to  carry  out  the  agreement  between  the  prisoner  and 
himself,  which  was  done,  and  the  prisoner  was  arrested  in  the  act,  it 
was  held  that,  to  constitute  larceny  of  a  slave,  it  must  appear  that  the 
accused  had  possession  of  the  slave,  and  that  the  possession  was  ob- 
tained without  the  consent  of  the  owner.  Kemp  v.  State,  11  Humph. 
(Tenn.)  320. 

Mr.  Bishop  says:  The  cases  of  greatest  difficulty  are  those  in 
which  one,  suspecting  crime  in  another,  lays  a  plan  to  entrap  him. 
Consequently,  even  if  there  is  a  consent,  it  is  not  within  the  knowledge 
of  him  who  does  the  act.  Here  we  see  *  *  *  that,  supposing  the 
consent  really  to  exist,  and  the  case  to  be  one  in  which,  on  general 
doctrines,  the  consent  will  take  away  the  criminal  quality  of  the  act, 
there  is  no  legal  crime  committed,  though  the  doer  of  the  act  did  not 


42  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

know  of  the  existence  of  the  circumstances  which  prevented  the  crim- 
inal quality  from  attaching.  *  *  *  A  common  case  is  that  of 
burglars  who,  intending  to  break  into  a  house  and  steal,  tempt  the 
servant  of  the  occupant  to  assist  them,  and  the  servant,  after  communi- 
cating the  facts  to  his  master,  is  authorized  to  join  them  in  appearance. 
Under  such  circumstances,  clearly,  the  burglars  are  not  excused  for 
what  they  do  personally;  but  it  seems,  if  the  servant  opens  the  door 
while  they  enter,  they  are  not  held  criminal  for  this  breaking  thus  done 
by  the  servant,  acting  under  command  of  the  occupant  of  the  house 
broken."    1  Bishop's  Cr.  Law,  §  262.    See,  also,  section  263. 

The  case  of  Regina  v.  Johnson  and  Jones,  1  Car.  &  M.  (41  Eng.  C. 
L.  R.)  123,  is  in  point.  In  that  case  the  court  say :  "Cole,  the  groom, 
it  is  true,  appeared  to  concur  with  the  prisoners  in  the  commission  of 
the  offense.  But  in  fact  he  did  not  really  concur  with  them,  and  he,  act- 
ing under  the  direction  of  the  police,  must  be  taken  to  have  been  acting 
under  the  direction  of  Mr.  Drake  the  prosecutor.  Under  the  circum- 
stances of  this  case  the  prisoners  went  into  a  door  which,  it  seems  to 
me,  was  lawfully  open.  Therefore  neither  of  them  was  guilty  of  bur- 
glary." 

In  Eggington's  Case,  which  is  also  in  point,  it  was  held  "that  no 
felony  was  proved,  as  the  whole  was  done  with  the  knowledge  and  as- 
sent of  Mr.  Boulton,  and  the  acts  of  Phillips  (the  servant)  were  his 
acts."    2  East,  666. 

Another  case  in  point  is  Allen  v.  State,  the  substance  of  which  is 
that,  "when  the  proof  showed  that  the  prisoner  proposed  to  a  servant 
a  plan  for  robbing  his  employer's  office  at  night;  that  the  servant  dis- 
closed the  plan  to  his  employer,  by  whom  it  was  communicated  to  the 
police ;  that  the  master,  acting  under  the  instructions  of  the  police, 
furnished  the  servant  with  the  keys  of  his  office  on  the  appointed 
night;  that  the  servant  and  the  prisoner  went  together  to  the  officei 
when  the  servant  opened  the  door  with  the  key,  and  both  entered 
through  the  door,  and  were  arrested  in  the  house  by  the  police — held 
that  there  could  be  no  conviction  of  burglary."  40  Ala.  334,  91  Am. 
Dec.  477.    See,  also,  2  Whart.  Cr.  Law,  §  1540 ;  Roscoe's  Cr.  Ev.  345. 

In  the  case  at  bar  the  detectives  cannot  be  considered  in  any  other 
light  than  as  the  servants  and  agents  of  the  bankers,  Adams  &  Leonard. 
They  (the  detectives)  had  the  legal  occupancy  and  control  of  the  bank. 
Two  of  them  made  arrangements  with  defendant  to  enter  it;  and  de- 
nt, when  arrested,  had  entered  the  bank  at  the  solicitation  of  those 
detectives,  who  were  rightfully  in  possession,  with  the  consent  of  the 
owners.  This  cannot  be  burglary  in  contemplation  of  law,  however 
much  the  defendant  was  guilty  in  purpose  and  intent. 

The  judgment  of  the  lower  court  must  be  reversed,  and  the  cause 
anded. 

Reversed  and  remanded.' 

1   tve  v.  People,  160  111.  501,  48  N.  D.  Via,  .-,2  L.  R.  A.  189  (180G); 
State  v.  Waghalter,  177  Mo.  678,  76  B.  W.  1028  (1908). 


Sec.  9)        EFFECT  OF  CONSENT,  CONDONATION,  ETC.  43 

STATE  v.  CURRIE. 

(Supreme  Court  of  North  Dakota,  1905.     13  N.  D.  655,  102  N.  W.  875,  G9  L. 
R.  A.  405,  112  Am.  St.  Rep.  687.) 

'Morgan,  C.  J.,  delivered  the  opinion  of  the  court.1 

The  defendant  was  convicted  of  the  crime  of  burglary  in  the  third 
degree,  and  sentenced  to  five  years  in  the  penitentiary.  His  prin- 
cipal contention  on  the  appeal  is  that  the  court  erred  in  refusing  to 
give  certain  requested  instructions  bearing  on  the  relation  of  the 
owner  of  the  building  and  of  a  certain  detective' to  the  commission 
of  the  alleged  crime.  His  claim  is  that  the  owner  of  the  building 
consented  to  the  burglary,  and  that  defendant  was  instigated  to  com- 
mit the  burglary  under  the  undue  influence  of  the  detective  in  caus- 
ing him  to  become  intoxicated. 

The  facts  are  uncontradicted  in  respect  to  what  transpired  before 
the  burglary,  and  are  as  follows:  About  January,  1904,  several  crimes, 
including  burglaries,  larcenies,  and  arson,  were  committed  in  Minto, 
Walsh  county,  N.  D.,  without  any  success  by  the  local  authorities 
in  arresting  the  perpetrators  and  bringing  them  to  trial.  Thereupon 
the  county  authorities  sought  the  aid  of  one  Walker,  a  detective  from 
St.  Paul.  The  detective  had  an  interview  with  the  state's  attorney 
upon  his  arrival  in  the  county,  and  secured  from  him  the  names  of 
the  persons  suspected  of  complicity  in  the  past  crimes,  among  them 
being  the  name  of  the  defendant.  The  detective  thereupon  acted  as 
a  cook  in  a  restaurant  in  Minto.  This  restaurant  was  kept  in  con- 
nection with  a  place  kept  by  one  Gile,  where  intoxicating  liquors 
were  unlawfully  sold.  The  restaurant  feature  of  the  establishment 
was  a  pretense,  as  a  matter  of  fact,  and  was  resorted  to  for  the  pur- 
pose of  giving  to  the  detective  the  appearance  of  having  employment 
at  the  place.  After  some  days  the  defendant  and  Walker  became 
acquainted,  and  soon  became  constant  companions.  They  ate  to- 
gether, slept  together,  drank  to  excess  together,  and  became  confiden- 
tial with  each  other  and  intimate  in  their  relations.  The  detective 
loaned  the  defendant  small  sums  of  money  at  one  time,  and  in  con- 
versation about  money  matters  the  detective  told  defendant  that  he 
had  $65  coming  from  Canada.  The  defendant  then  stated  to  Walker 
that  he  knew  where  "we  could  get  some  money,"  and,  upon  being 
asked  where,  answered,  "In  some  of  these  stores  around  here."  The 
defendant  and  Walker  finally,  and  after  much  consideration  of  the 
time  and  place  of  a  burglary,  concluded  to  break  into  a  store.  The 
detective  says,  in  respect  to  the  final  conclusion :  "We  arranged  a 
deal  to  break  this  store  open."  The  first  suggestion  of  a  burglary, 
as  between  the  defendant  and  Walker,  came  from  the  defendant. 
Several  stores  were  suggested  by  the  defendant  as  ones  that  might  be 
burglarized,  and  among  them  Zulesdorff's,  the  one  that  was  broken 

1  Part  of  this  case  is  omitted. 


44  THE    ELEMENTS   OF   CRIME.  (Cll.  2 

into.  Before  the  store  to  be  burglarized  was  agreed  upon,  Walker 
secured  a  letter  of  introduction  to  the  mayor  of  Minto  from  the 
state's  attorney.  Walker  presented  the  letter  to  the  mayor,  and  told 
him  of  the  contemplated  burglary,  and  further  stated:  "I  told  him 
what  I  was  there  for,  and  told  him  about  the  stores,  this  building 
to  be  broken  open,  and  told  him  that  I  didn't  want  myself  in  some 
place  where  I  might  get  shot,  *  *  *  and  told  the  doctor,  if 
he  knew  any  storekeeper  in  town  there  that  would  keep  a  secret,  he 
had  better  go  and  notify  him,  and  afterwards  I  would  see  him." 
Dr.  Evans,  the  mayor,  suggested  that  Zulesdorff's  store  be  selected, 
and  saw  Zulesdorff  in  pursuance  of  this  request,  and  Zulesdorff  sent 
Walker  word  that  he  wished  to  see  him.  Walker  saw  Zulesdorff 
thereafter,  and  testifies  as  to  what  transpired  between  them  as  fol- 
lows: "And  he  said  that  he  had  seen  Dr.  Evans,  and  he  said  that 
things  would  be  all  right;  and  I  told  him  that  after  it  was  broken 
into  he  was  to  keep  still  about  it,  and  told  him  what  I  wanted  to 
know  on  the  outside;  and  I  said,  'By  doing  that  I  can  get  in  a  little 
work,  and  can  find  out  the  rest  of  these  people.'  So  that  was  about 
all  that  was  said  between  I  and  Frank  Zulesdorff." 

Later,  he  testified  as  follows  upon  his  further  cross-examination: 
"Q.  And  Zulesdorff  told  you  it  would  be  all  right?  A.  Yes,  sir. 
Q.  And  that  he  would  permit  you  to  use  his  store  in  your  plans,  and 
would  keep  the  matter  a  secret  for  sufficient  length  of  time  to  enable 
you  to  complete  the  job?    A.  Yes,  sir." 

Zulesdorff  did  nothing  further  in  reference  to  the  burglary,  except 
that  he  marked  two  $5  bills  that  he  left  in  the  money  drawer  with 
other  money  on  the  Saturday  night  preceding  the  burglary,  which  was 
committed  on  Sunday  night.  The  doors  and  safe  and  money  drawers 
were  locked,  and  left  in  the  same  manner  as  usual.  He  marked  the 
bills,  so  that  he  could  identify  them  in  case  they  were  stolen.  On 
these  facts  it  is  claimed  that  Zulesdorff  consented  to  the  breaking, 
and  that  the  defendant  cannot,  in  consequence  of  such  consent,  be 
rightfully  convicted  of  the  crime  of  burglary. 

After  the  conversation  between  Zulesdorff  and  Dr.  Evans  and 
Walker,  it  was  definitely  decided  by  defendant  and  Walker  that  the 
Zulesdorff  store  was  the  one  to  be  burglarized.  Walker  said  that  he 
never  made  any  suggestions  to  the  defendant  as  to  the  burglary ; 
that  he  simply  acquiesced  and  agreed  to  defendant's  plans.  In-  an- 
swer to  a  question  as  to  "why  you  didn't  go  on  with  your  plans  then, 
thing  being  all  right,"  he  testifies:  "Yes,  sir;  right  enough,  if 
I  had  wanted  to  work  the  plan  myself,  but  I  didn't  want  to  do  that. 
I  wanted  him  to  do  it  himself,  if  lie  wanted  to  do  it."  Walker  and 
defendant  agreed  to  break  into  the  store  Saturday  night,  and  went 
to  the  store  for  that  purpose,  but  something  happened  after  they  got 
to  the  store  causing  tin-  breaking  to  be  abandoned  on  defendant's 
request.  He  then  said,  however,  "We  will  try  it  to-morrow  night." 
On  Sunday  night  they  again  went  to  the  store,  and  broke  into  it  by 


Sec.  9)  EFFECT  OF  CONSENT,  CONDONATION,  ETC.  45 

joint  force.  The  defendant  removed  the  marked  bills  and  other 
money  from  the  money  drawer,  and  a  fur-lined  coat  was  also  taken 
from  the  store  by  defendant,  and  they  left  the  building  together.  Af- 
ter leaving  the  building  the  money,  $16.60,  was  equally  divided  between 
them.  The  overcoat  was  hidden  in  a  livery  barn  by  the  defendant,  and 
subsequently  found  by  an  officer  and  returned  to  the  owner.  In  a 
few  days  the  defendant  was  arrested  at  the  instance  of  one  Gile,  and 
his  trial  and  conviction  followed. 

Upon  these  facts  two  questions  are  presented  for  consideration, 
which  were  raised  at  the  trial  by  requests  to  instruct  the  jury,  and 
they  were  also  urged  on  a  motion  for  a  new  trial:  (1)  Did  the  owner 
of  the  property  consent  to  the  breaking  into  of  his  building  by  the 
defendant?  (2)  Did  the  fact  of  the  detective  Walker's  participation 
in  the  burglary  entitle  the  defendant  to  a  reversal  of  the  judgment 
of  conviction? 

Upon  the  first  question  the  facts  as  narrated  show  that  Zulesdorff 
did  nothing  by  any  act  to  aid  in  the  burglary  of  his  building.  He 
remained  passive  after  being  informed  of  the  intended  burglary.  The 
plan  of  a  burglary  had  been  arranged  before  he  was  advised  of  the 
plan  of  the  detective  to  join  the  defendant  in  the  proposed  burglary 
as  a  feigned  participant.  Zulesdorff  gave  the  detective  no  instructions. 
He  did  not  advise  him  as  to  the  manner  of  proceeding,  nor  do  any- 
thing to  assist  in  the  burglary.  The  store  was  closed  and  locked  in 
the  usual  manner.  When  he  consented  to  remain  away,  at  the  request 
of  the  detective,  for  the  purpose  of  securing  evidence,  it  was  not 
certain  that  his  store  was  the  one  to  be  burglarized,  nor  when  it  was 
to  occur.  The  Zulesdorff  store  was  selected  as  the  one  to  be  burgla- 
rized after  the  detective's  interview  with  him.  Under  these  conditions 
it  cannot  be  said  that  he  consented  to  the  burglary.  Before  the  own- 
er's consent  will  be  a  defense  to  a  burglary,  the  owner  must  participate, 
or  in  some  way  aid  or  solicit  or  encourage  the  burglary.  Mere  knowl- 
edge that  a  person's  property  is  to  be  burglarized,  followed  by  non- 
action on  his  part  to  thwart  it,  is  not  deemed  a  consent  to  it.  His 
consent  must  be  manifested  by  some  act  of  assistance.  Mere  pas- 
siveness  for  the  purpose  of  securing  evidence  of  the  burglary  is  not 
such  consent  as  can  be  urged  by  the  burglar  as  a  defense.  The  detective 
was  not  the  agent  of  Zulesdorff  in  the  matter  at  all,  nor  did  he  have 
charge  of  the  building  in  any  sense;  hence  the  detective's  acts  can- 
not be  said  to  be  those  of  the  owner. 

Upon  the  second  question  the  state's  evidence  shows  that  the  de- 
tective did  not  instigate  the  commission  of  the  offense.  The  sugges- 
tion of  committing  the  crime,  and  the  active  planning  of  it,  is  shown 
to  have  come  from  the  defendant.  The  detective  fell  in  and  agreed 
with  the  defendant's  plan.  It  is  true  the  detective  deceived  the  de- 
fendant as  to  the  purpose  of  his  complicity  in  the  crime.  He  assisted 
by  his  acts,  but  with  a  hidden  purpose.     Without  commending  this 


46  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

practice,  or  commenting  upon  it  as  dangerous  and  generally  of  doubt- 
ful propriety,  we  will  say  that,  if  the  defendant  is  shown  to  have  com- 
mitted the  crime  in  its  completeness,  the  feigned  complicity  of  a  de- 
tective in  the  crime  should  not  be  a  shield  to  the  defendant.  The  au- 
thorities almost  unanimously  hold  that  -a  detective  may  aid  in  the  com- 
mission of  the  offense  in  conjunction  with  a  criminal,  and  that  the 
fact  will  not  exonerate  the  guilty  party.  Mere  deception  by  the  detec- 
tive will  not  shield  the  defendant,  if  the  offense  be  committed  by  him 
free  from  the  influence  or  instigation  of  the  detective.  The  detec- 
tive must  not  prompt  or  urge  or  lead  in  the  commission  of  the  offense. 
The  defendant  must  act  freely  of  his  own  motion,  and,  if  he  so  acts, 
the  fact  that  the  detective  was  not  an  accomplice  in  fact  will  not  ac- 
crue to  his  benefit.  The  defendant  is  not  to  be  charged  with  what 
was  done  by  the  detective,  as  the  two  are  not  acting  together  for  a 
common  purpose.  As  was  said  by  the  court  in  State  v.  Jansen,  22 
Kan.  498 :  "The  act  of  a  detective  may,  perhaps,  not  be  imputable  to 
the  defendant,  as  there  is  a  want  of  community  of  motive.  *  *  * 
But  where  each  of  the  overt  acts  going  to  make  up  the  crime  charged- 
is  personally  done  by  the  defendant,  and  with  criminal  intent,  his 
guilt  is  complete,  no  matter  what  motives  may  prompt  or  what  acts 
be  done  by  the  party  who  is  with  and  apparently  assisting  him."  The 
cases  cited  above  are  all  to  the  effect  that  the  assistance  of  a  detective 
in  a  burglary  is  no  defense  to  a  person  who  himself  does  every  act 
essential  to  constitute  the  burglary. 
The  judgment  is  affirmed.2 


II.  Consent  of  the  State. 

If  two  play  at  barriers,  or  run  a  tilt  without  the  King's  command- 
ment, and  one  kill  the  other,  it  is  manslaughter ;  but  if  by  the  King's 
command,  it  is  not  a  felony,  or,  at  most  per  infortuniam.  11  Hen.  VII, 
23 ;  B.  Coron.  229 ;  Dalton,  c.  96 ;  Co.  P.  C.  p.  66. 

Hale,  P.  C.  473. 


FORD  v.  CITY  OF  DENVER. 

rrv„irt  of  Appeals  of  Colorado,  189S.     10  Colo.  App.  500,  51  Pac.  1015.) 

Thomson,  P.  J.,  delivered  the  opinion  of  the  court. 

.Sijit  by  the  city  of  Denver  to  recover  a  penalty  for  an  alleged 
violation  of  its  ordinance.  Judgment  for  the  pTaTntiff,  and  appeal  by 
the  defendant. 

a  See,  also,  State  v.  am.  v.  109  [owa,  61,  «<»  N.  W.  226,  46  L.  R.  A.  862, 

77  Am.  si.  Rep.  520  (1899);   State  \.  West,  r.7  Mo.  809,  57  S.  W.  1071  (VJ00) ; 
Daltou  v.  Statu,  118  Ga.  i"::7,  :;:»  S.  K.  468  (l'JOl). 


bfC.   9  I  WtrTTTT'T     r»in    rnvomvrn      *-i ^ »■. »-» ~ »-  .  . 


Sec.  9)  EFFECT   OF  CONSENT,  CONDONATION,  ETC.  47 

The  ordinance,  the  violation  of  which  was  charged,  prohibited  the 
selling  or  giving  away,  within  the  limits  of  the  city,  of  intoxicating 
or  malt  liquors,  in  any  quantity  less  than  a  gallon,  by  any  person  with^ 
out  a  license  for  the  purpose,  except  by  a  druggist  upon  the  prescrip- 
tion of  a  reputable  physician  and  for  medical  purposes.  The  case  was 
heard  upon  an  agreed  statement  of  facts,  from  which  it  appears  that 
the  defendant  was  a  druggist,  not  having  a  license,  and  that  a  sale 
of  a  quantity  of  intoxicating  liquors  less  than  a  gallon  was  made  b"y 
his  clerk  without  the  prescription  of  a  physician,  but  on  the  supposition 
that  it  was  to  be  used  for  medical  purposes.1 

Second.  It  appears  that  the  city  was  instrumental  in  procuring  the 
sale  of  the  liquor.  Its  purpose  was  to  lay  the  foundation  for  a  suit, 
in  which  a  judicial  opinion  as  to  what  would  constitute  a  violation 
of  the  ordinance  might  be  procured.  Apparently  this  purpose  was  un- 
known to  the  defendant's  clerk  when  he  made  the  sale,  and,  technic- 
ally, at  least,  his  act  was  contrary  to  the  ordinance.  But  the  city  is  in 
no  position  to  say  that  its  ordinance  was  violated.  It  was  as  much 
responsible  for  the  sale  of  the  liquor  as  the  defendant,  and  it  will 
not  be  permitted  to  replenish  its  treasury  from  penalties  incurred  at 
its  instigation.  It  cannot  be  heard  to  complain  of  an  act  the  doing  of 
which  it  solicited.  It  is  entitled  in  a  proper  case  to  have  its  ordinance 
construed,  and  questions  concerning  it  determined;  but  it  cannot 
manufacture  a  case  for  the  purpose,  or  obtain  the  information  it  de- 
sires at  the  expense  of  a  party  for  whose  infraction  of  its  ordinance 
it  is  responsible.  For  the  foregoing  reasons  the  questions  submitted 
will  not  be  discussed. 

The  judgment  is  reversed,  and  the  court  below  instructed  to  dismiss 
the  case. 

Reversed. 


CITY  OF  EVANSTON  v.  MYERS. 

(Supreme  Court  of  Illinois,  1S98.     172  111.  266,  50  N.  E.  204.) 

Mr.  Justice  Wilkin  delivered  the  opinion  of  the  court.2 
The  Appellate  Court,  in  passing  upon  this  case,  found  that  the 
beer  was  sold  as  alleged  in  the  complaint,  but  held  that,  inasmuch 
as  the  city  furnished  the  money  and  the  purchaser  was  in  its  employ 
to  discover  violators  of  the  ordinance,  the  offense  was  one  induced 
by  the  city  of  Evanston,  and  the  defendant  was  not  punishable  there- 
for. Under  the  facts  of  the  case,  as  we  understand  them,  we  cannot 
concur  in  this  view.     The  offense,  if  one  was  committed,  consists  in 

i  Part  of  the  opinion  is  omitted. 
*  The  opinion  only  is  printed. 


18  THE   ELEMENTS   OF   CRIME.  (Ch.  2 

the  unlawful  selling  of  intoxicating  liquor.  The  defendant  was  pass- 
ing through  an  alley  in  Evanston  with  a  load  of  beer  when  Denvir 
hailed  him,  asking,  "How  is  it  for  a  case  of  beer?"  to  which  he  replied, 
"It  is  all  right."  The  money  was  paid,  and  the  beer  handed  out.  It 
is  clear  that  Denvir,  in  making  this  purchase,  used  no  fraud,  deceit, 
or  inducement  other  than  a  willingness  to  buy.  It  also  appears,  un- 
contradicted, that  appellee  had  sold  beer  to  Denvir  at  other  times,  in 
violation  of  the  ordinance  in  question.  On  this  occasion  he  was  will- 
ing to  do  so  again.  The  offense  of  selling  the  beer  having  been  volun- 
tarily committed,  is  it  reasonable  to  say  that  the  willingness  of  Denvir 
to  purchase,  for  whatever  purpose  or  object,  constitutes  a  sufficient 
inducement  to  appellee  to  make  the  sale,  so  as  to  excuse  the  act?  We 
think  not.  The  offense  consisted,  not  in  the  buying,  but  in  the  sell- 
ing, of  the  beer. 

A  number  of  cases  are  cited  to  sustain  the  theory  of  the  appellee's 
defense,  but  in  those  cases  the  criminal  acts  charged  were  not  wholly 
voluntary  on  the  part  of  the  defendant,  but  were  induced,  in  some 
measure,  by  the  acts  and  conduct  of  the  prosecuting  witnesses.  The 
principle  here  involved  is  well  announced  in  the  case  of  Grimm  v. 
United  States,  156  U.  S.  604,  15  Sup.  Ct.  470,  39  L.  Ed.  550.  In 
that  case  a  post  office  inspector  suspected  Grimm  of  being  engaged  in 
the  business  of  selling  obscene  pictures  and  sending  them  through  the 
mails.  Under  assumed  names  the  inspector  wrote  for  a  supply  of 
the  pictures,  and  received  them  from  defendant.  In  defense  of  the 
charge  made  against  him,  defendant  insisted  the  conviction  should 
not  be  sustained,  because  the  letters  were  deposited  in  the  mails  at 
the  instance  of  the  government  and  through  the  solicitation  of  one  of 
its  officers.  Upon  this  point  the  court  said :  "It  does  not  appear  that 
it  was  the  purpose  of  the  post  office  inspector  to  induce  or  solicit  the 
commission  of  a  crime,  but  it  was  to  ascertain  if  the  defendant  was  in 
an  unlawful  business.  *  *  *  The  law  was  actually  violated  by 
the  defendant.  He  placed  letters  in  the  post  office  which  conveyed 
information  as  to  where  obscene  matter  could  be  obtained,  and  he 
placed  them  there  with  a  view  of  giving  such  information  to  the  per- 
son who  should  receive  those  letters,  no  matter  what  his  name ;  and 
the  fact  that  the  person  who  wrote  under  these  assumed  names  and 
received  his  letters  was  a  government  detective  in  no  manner  detracts 
from  It."    See  the  cases  there  cited. 

In  the  case  at  bar  it  may  be  truly  said  it  does  not  appear  that  it 
was  the  purpose  of  the  city  of  Evanston  to  induce  or  solicit  the  un- 
lawful selling  of  beer  within  its  limits,  but  to  ascertain  whether  the 
ordinance  was  being  violated  in  that  regard.  The  appellee  committed 
the  act  charged  against  him,  deliberately1  and  voluntarily,  and  in  such 
a  manner  as  to  indicate  that  he  would  have  sold  beer  to  any  other 
person  applying  for  it.  We  think  no  element  is  wanting  on  the  part 
of  appellee  in  this  case  to  bring  this  act  within  the  letter  and  spirit 


SeC.  9)  EFFECT   OF   CONSENT,  CONDONATION,  ETC.  49 

of  the  ordinance.  The  position  of  appellee  is  not  that  he  is  innocent 
of  the  offense  charged,  but  that  his  guilt  was  proven  on  the  trial  by 
evidence  obtained  in  an  objectionable  manner  by  the  city.  This  is  a 
matter  of  which  he  has  no  right  to  complain. 

Other  points  insisted  upon  by  counsel  for  appellee  have  been  duly 
considered,  but  we  find  no  substantial  merit  in  them. 

The  judgments  of  the  criminal  court  and  Appellate  Court  will  be 
reversed,  and  the  case  will  be  remanded  to  the  criminal  court. 

Reversed  and  remanded.2 


III.  Negligence  oe  the  Person  Injured.   ■'■\i>»* 
REGINA  v.  LONGBOTTOM. 

(Norfolk  Circuit,  1849.     3  Cox,  C.  C.  439.)     <**-* 


T  U-t~t  e. 


The  indictment  charged  that  the  two  prisoners  feloniously  killed 
and  slew  John  Truman,  by  driving  over  him  with  a  gig. 

O'Malley  and  E.  Rodwell,  for  the  prosecution,  proved  that  the  two 
prisoners,  who  lived  in  Ipswich,  had  gone  to  Bentley  on  the  day  named 
in  the  indictment  in  a  gig,  and  that  on  their  return  at  night  they  were 
observed  to  be  in  a  state  of  partial  intoxication.  At  several  places  they  /  ••• 
drove  along  the  high  road  at  a  very  rapid  pace,  and  when  they  got 
within  two  miles  of  Ipswich  they  met  three  men.  At  that  time  they  ■.. 
were  laughing  and  driving  rapidly  down  a  hill,  the  top  of  which 
was  thickly  shaded  with  trees.  When  the  three  men  got  to  the  trees 
they  found  a  man  lying  insensible  in  the  middle  of  the  road,  present- 
ing all  the  appearance  of  having  been  just  run  over  by  some  vehicle. 
They  took  up  the  man,  who  shortly  afterwards  died.  On  inquiry  it 
turned  out  that  the  deceased  was  a  man  who  had  been  deaf  from  child- 
hood, but  had,  in  spite  of  his  infirmity,  contracted  an  inveterate  habit 
of  walking  at  all  hours  in  the  middle  of  the  road.  Against  the  prob- 
able consequences  of  an  indulgence  in  this  habit  he  had  been  fre- 
quently warned,  but  without  effect. 

2  Compare  U.  S.  v.  Adams  (D.  C.)  59  Fed.  674  (1S94) ;  Armstrong  v.  State 
(Tex.  Cr.  App.)  47  S.  W.  9S1  (1S98) ;  Wilcox  v.  People,  17  Colo.  Ai  p.  109, 
67  Pac.  343  (1902) ;  State  v.  Lucas,  94  Mo.  App.  117,  67  S.  W.  971  (1902). 

"It  is  not  pretended  that  there  was  a  law  of  our  state  authorizing  the 
killing  of  a  male  of  that  tribe,  and  the  proclamation  or  order  of  any  officer  of 
the  state  could  not  make  that  right  which  is  wrong,  or  legal  which  is  illegal. 
If  such  a  proclamation  or  order  was  made,  and  if  on  account  thereof  any 
ignorant  person  was  misled  into  the  commission  of  crime,  it  is  for  the  Gov- 
ernor to  determine  whether  that  would  be  a  proper  case  for  the  exercise  of 
executive  clemency."  Wilson,  C.  J.,  in  State  v.  Gut,  13  Minn.  341  (Gil.  315) 
(1868).  See,  also,  People  v.  Mills,  18  N.  Y.  Cr.  R.  125,  SO  N.  Y.  Supp.  529 
(1904). 

Mik.Cb.L.— 4 


50  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

D.  D.  Keane,  for  the  prisoner,  Longbottom,  submitted,  at  the  close 
of  the  case  for  the  prosecution,  that  he  ought  to  be  acquitted,  inas- 
much as  it  appeared  that  the  deceased  had  contributed  in  a  great 
measure,  if  not  altogether,  to  his  own  death  by  his  own  obstinacy  and 
negligence.  There  was,  moreover,  no  proof  that  the  prisoners  were 
driving  at  any  extraordinary  pace;  while  it  appeared  that  they  were 
in  the  middle  of  the  road,  and  that  the  deceased  was  walking  just 
where  he  ought  not  to  have  been,  reference  being  had  to  the  lateness 
of  the  hour,  the  darkness  of  the  place,  and  his  peculiar  infirmity,  which 
ought  to  have  induced  him  to  refrain  from  the  selection  of  the  most 
frequented  part  of  the  high  road  as  that  on  which  alone  he  would 
walk.  No  accident  could  possibly  have  occurred  to  the  deceased,  if 
he  had  been  at  the  side  of  the  road  where  foot  passengers  always 
walked.  He  had,  therefore,  contributed  to  his  own  death,  and  the 
question  was  whether  that  fact  did  not  exonerate  the  prisoners  from 
such  a  charge  as  the  present.  This  might  be  tested  by  analogy  with  a 
civil  action  under  Lord  Campbell's  act.  Under  that  statute  the  rep- 
resentatives of  the  deceased  could  not  maintain  an  action  for  com- 
pensation- against  the  prisoners,  as  he  had  himself  been  guilty  of 
negligence ;  so,  in  this  prosecution,  it  was  contended  that  the  prisoners 
could  not  be  convicted  of  the  crime  of  manslaughter. 

Rolfe,  B.  I  cannot  stop  the  case;  for,  whatever  may  have  been 
the  negligence  of  the  deceased,  I  am  clearly  of  opinion  that  the  pris- 
oners would  not  be  thereby  exonerated  from  the  consequences  of  their 
own  illegal  acts,  which  would  be  traced  to  their  negligent  conduct,  if 
any  such  existed.  I  am  of  opinion  that,  if  any  one  should  drive  so  rap- 
idly along  a  great  thoroughfare  leading  to  a  large  town  as  to  be  unable 
to  avoid  running  over  any  pedestrian  who  may  happen  to  be  in  the 
middle  of  the  road,  it  is  that  degree  of  negligence  in  the  conduct  of 
a  horse  and  gig  which  amounts  to  an  illegal  act  in  the  eye  of  the  law ; 
and,  if  death  ensues  from  the  injuries  then  inflicted,  the  parties  driv- 
ing are  guilty  of  manslaughter,  even  though  considerable  blame  may 
be  attributed  to  the  deceased.  I  do  not  at  all  recognize  the  analogy 
which  has  been  put  with  regard  to  an  action  under  Lord  Campbell's 
act  and  a  charge  of  felony;  and  I  abstain  from  giving  any  opinion 
as  to  the  question  whether,  under  the  circumstances  here  proved,  the 
representatives  of  the  deceased  would  be  precluded  from  maintain- 
ing an  action  for  compensation  against  the  prisoners.  But  there  is 
a  very  wide  distinction  between  a  civil  action  for  pecuniary  compen- 
sation for  death  arising  from  alleged  negligence  and  a  proceeding 
by  way  of  indictment  f<>r  manslaughter.  The  latter  is  a  charge  im- 
puting criminal  negligi  nee,  amounting  to  illegality,  and  there  is  no 
balance  of  bl  '  qi  in  charges  of  felony;  but,  wherever  it  appears  that 
death  lias  been  occasioned  by  the  illegal  act  of  another,  that  other  is 
guilty  of  man  in  poinl  of  law,  though  it  may  be  that  he  ought 

not  to  be  severely  punished.     If  the  jury  should  be  of  opinion  that  the 


Sec.  9)  EFFECT   OF   CONSENT,  CONDONATION,  ETC.  51 

prisoners  were  driving  along  the  road  at  too  rapid  a  pace,  consider- 
ing the  time  and  place,  and  were  conducting  themselves  in  a  careless 
and  negligent  way  in  the  management  of  the  horse  intrusted  to  their 
care,  I  am  of  opinion  that  such  conduct  amounts  to  illegality,  and 
that  the  prisoners  must  be  found  guilty  on  this  indictment,  whatever 
may  have  been  the  negligence  of  the  deceased  himself. 
Verdict,  guilty.1 

IV.  Guilt  of  the  Person  Injured,  T 
PEOPLE  v.  MARTIN. 

(Supreme  Court  of  California,  1894.    102  Cal.  558,  36  Pae.  952.) 

Garoutte,  J.2  The  appellant  was  convicted  of  obtaining  money 
and  other  personal  property  from  one  Sarah  E.  Leonard  by  false  and 
fraudulent  pretenses.  The  information  is  laid  under  section  532  of 
the  Penal  Code,  and  the  false  pretenses  upon  which  it  is  based  con- 
sisted in  the  representations  to  said  Leonard  by  the  defendant  that 
a  judgment  irTa"  large  sum  of  money  had  been  obtained  against  her 
in  the  state  of  New  York,  and  that  her  property  would  be  seized  and 
sold  to  satisfy  such  judgment.  The  information  further  states  that 
said  Leonard  believed  such  statements,  and,  so  believing,  and  in  order 
to  avoid  the  application  of  her  property  to  the  satisfaction  of  such 
judgment,  she  was  induced  to,  and  did,  transfer  and  deliver  said 
property  to  defendant. 

The  information  contained  various  allegations  other  than  those 
just  noticed,  and  a  demurrer  was  offered  thereto  upon  various 
grounds;  but  we  think  the  information  well  drawn,  and  our  consid- 
eration of  the  alleged  defects  therein  will  be  limited  to  the  contention 
of  appellant  that  the  allegations  we  have  in  substance  quoted  therefrom 
constitute  a  bar  to  the  prosecution  of  the  accused.  Possibly  the  state 
might  be  barred  from  conducting  a  criminal  prosecution  by  reasons  J 

i  Accord:  Rex  v.  Hutchinson,  9  Cox,  C.  C.  555  (1864) ;  Reg.  v.  Kew,  12 
Cox,  C.  C.  355  (1872).  See,  also,  Commonwealth  v.  Corporation,  134  Mass. 
211  (1883).    Contra :    Reg.  v.  Birchall,  4  F.  &  F.  1087  (1866). 

"In  Reg.  v.  Desvignes,  tried  before  Denman,  J.,  at  the  last  session  of 
the  Central  Criminal  Court,  the  defendant  was  charged  with  the  manslaughter 
of  Sarah  Ballard,  on  the  night  of  the  24th  of  July  last,  by  so  negligently 
managing  a  steam  launch  that  a  skiff  containing  the  deceased  and  other 
persons  was  run  down  and  capsized,  and  her  death  caused  by  drowning.  In 
opening  the  case,  the  counsel  for  the  prosecution  laid  it  down  broadly  that, 
although  contributory  negligence  would  be  an  element  in  favor  of  the  defend- 
ant in  a  civil  case,  it  was  no  answer  to  a  charge  of  manslaughter.  Mr.  Justice 
Denman  said:  'There  is  one  decision  to  the  contrary  (Reg.  v.  Birchall,  4 
F.  &  F.  1087) ;  but  I  grant  that  current  authority  is  in  the  direction  you 
mention.  The  point,  however,  has  never  been  settled  in  the  Court  of  Ap- 
peal.' "   -70  L.  T.  (O.  S.)  76  (1SS0). 

2  Arguments  of  counsel  and  part  of  the  opinion  relating  to  another  point 
are  omitted. 


: 


52  THE    ELEMENTS    OF   CRIME.  (Ch.  2 

of  the  acts  of  its  duly  constituted  officers  representing  the  state  in  such 
matters;  but  it  is  a  novel  proposition  that  the  acts  and  conduct  of  a 
private  individual,  even  though  such  individual  be  what  is  termed 
in  law  the  prosecuting  witness,  could,  under  any  imaginable  circum- 
stances, bar  the  state  from  the  prosecution  of  a  criminal.  Appellant 
states  her  position  as  follows: 

"If,  at  the  time  that  Sarah  E.  Leonard  placed  her  property  in  the 
possession  of  the  defendant,  she  believed  that  there  was  a  valid  and 
existing  judgment  for  $17,000  or  $18,000  against  her  in  the  state  of 
New  York,  and  she  placed  her  property  out  of  her  hands  to  avoid 
its  being  applied  towards  the  satisfaction  of  such  judgment,  her  in- 
tentions were  dishonest,  and  she  was  herself  guilty  of  a  criminal  of- 
fense, and  became  particeps  criminis." 

The  case  of  McCord  v.  People,  46  N.  Y.  472,  appears  to  support 
the  doctrine  insisted  upon  by  appellant,  but  the  great  weight  of  au- 
thority is  to  the  contrary.  It  is  said  by  the  court  in  Commonwealth 
v.  Morrill,  8  Cush.  (Mass.)  571:  "Supposing  that  to  be  otherwise, 
and  it  should  appear  that  Lynch  (the  party  defrauded)  had  also 
violated  the  statute,  that  would  not  justify  the  defendants.  If  the 
other  party  has  also  subjected  himself  to  a  prosecution  for  a  like 
offense,  he  also  may  be  punished.  This  would  be  much  better  than 
that  both  should  escape  punishment  because  each  deserved  it  equally." 
The  doctrine  of  the  foregoing  case  is  approved  by  Mr.  Bishop  in 
his  work  on  Criminal  Law  (section  469,  8th  Ed.).  The  principle 
is  also  declared  in  the  same  work  at  sections  256  and  257.  See,  also, 
In  re  Cummins,  16  Colo.  451,  27  Pac.  887,  13  L.  R.  A.  752,  25  Am. 
St.  Rep.  291.  From  any  aspect  of  the  case  the  contention  has  no 
sound  support.  If  the  party  defrauded  is  also  guilty  of  a  violation 
of  the  law,  he,  too,  should  be  prosecuted,  rather  than  his  offense  should 
serve  as  a  shield  to  the  other's  crime.  The  offense  is  committed 
against  the  public,  and  not  against  the  individual.  The  guilty  party 
is  prosecuted  in  the  interest  of  the  people  of  the  state,  and  not  in 
the  interest  of  the  party  defrauded  of  his  property.  There  is  no 
principlje  of  law  that  will  bar  the  state  from  prosecuting  a  criminal 
because  some  other  person  is  a  particeps  criminis.  But,  viewing  the 
facts  of  this  case  in  the  light  of  the  indictment,  the  defrauded  party 
committed  no  offense  whatever.  How  could  she  possibly  do  so,  when 
the  pretenses  were  all  false,  and  the  whole  thing  was  but  a  scheme  of 
lying  and  deceit?  If  such  be  a  crime,  she  transferred  no  property 
to  ev;i  ipplication  upon  a  money  judgment  which  stood  against 

her,  Eor  there  was  no  such  judgment.    Her  intention  to  make  a  trans- 
fer   for   that   purpose   avails   nothing,   for  a  person's   intentions   alone 
■   no  law. 

We  have  examined  the  additional  assignments  of  error  based  upon 
llings  of  the  court  as  to  the  admission  and  rejection  of  evidence, 
and  hold  none  of  them  to  be  well  taken. 


Sec.  9)  EFFECT   OF   CONSENT,  CONDONATION,  ETC.  53 

_  For  the  foregoing  reasons,  it  is  ordered  that  the  judgment  and 
order  be  affirmed. 

Harrison,  McFarland,  De  Haven,  and  Van  Fleet,  JJ.,  con- 
curred. 

Rehearing  denied.' 

V.  Condonation  of  the  Person  Injured.  ; 


(^c^/yn^y  ROBERT'S   CASE. 

(Select  Pleas  of  the  Crown,  Sel.  Soc.  PI.  77.    Cornish  WreT  1201.) 

Malcot  Crawe  appeals  Robert,  Godfrey's  son,  of  rape.  He  comes 
and  defends.  It  is  testified  that  he  thus  raped  her  and  that  she  was 
seen  bleeding.  By  leave  of  the  justices  they  made  concord  on  the 
terms  of  his  espousing  her.  Uf£.  X'tc  ^t^J 

WILLIAMS  v.  STATE.   i^L^L^ 

(Supreme  Court  of  Georgia,  1S98.     105  Ga.  606,  31  S.  E.  546.) 

Lumpkin,  P.  J.  An  indictment  against  G.  W.  M.  Williams,  found 
by  the  grand  jury  of  Screven  county  and  transferred  for  trial  to  the 
county  court  thereof,  charged  that  the  accused  "did  falsely  and  fraud- 
ulently represent  to  J.  C.  White  that  he,  the  said  Williams,  had  pur- 
chased the  Cuyler  &  Woodburn  Railroad  for  the  sum  of  $27,000,  and 
that  he  had  raised  all  of  the  purchase  price  except  $100,  and  was 
then  on  his  way  to  Savannah  to  pay  the  purchase  money.  By  these 
false  and  fraudulent  representations  the  said  G.  W.  M.  Williams, . 
fraudulently  induced  the  said  J.  C.  White  to  lend  him,  the  said  G. 
W.  M.  Williams,  the  sum  of  $100,  which  he  promised  to  pay  back 
within  three  days  from  the  date  of  the  loan.  These  representations, 
made  as  aforesaid,  were  all  false  and  fraudulent,  and  were  made  by 
the  said  Williams  for  the  purpose  of  defrauding  the  said  White,  and 
did  in  point  of  fact  defraud  the  said  White,  contrary  to  the  laws  of 
the  said  state,  the  good  order,  peace,  and  dignity  thereof."  At  the 
trial  the  state  introduced  testimony  substantiating  all  the  material 
allegations  of  the  indictment.  It  distinctly  appeared  that,  in  the  con- 
versation between  the  accused  and  White  which  resulted  in  the  form- 
er's procuring  the  loan,  he  claimed  to  be  the  owner  of  the  railroad 
in  question.  For  instance,  he  used  the  expression,  "I  don't  want  to 
incumber  my  road,"  and  other  language  indicating  a  purpose  on  his 

2  Accord:  Cunningham  v.  State,  61  N.  J.  Law,  67,  38  Atl.  847  (1897).  See, 
also,  Commonwealth  v.  Henry,  22  Pa.  253  (1853) ;  Reg.  v.  Hudson,  8  Cox, 
C.  C.  305  (1860);  Commonwealth  v.  Shober,  3  Pa.  Sup.  Ct.  554  (1807);  Gil- 
more  v.  'People,  87  111.  A  pp.  12S  (1899).  Contra:  State  v.  Crowley,  41  Wis. 
271,  22  Am.  Rep.  719  (1870). 


54  THE    ELEMENTS    OF    CRIME.  (Ch.  2 

part  to  create  the  impression  that  the  railroad  was  his  property.  It 
was  further  shown  by  the  state  that  White  was  actually  defrauded  of 
$100,  and  that  Williams  did  not  repay  the  loan  as  he  had  agreed  to 
do.  Evidence  in  behalf  of  the  accused  tended  to  show  the  following: 
After  Williams  had  been  arrested  upon  a  warrant  charging  him  with 
being-  a  cheat  and  swindler,  and  before  he  was  indicted,  he  made  a 
settlement  with  White  by  delivering  to  him  the  promissory  note  of 
E.  E.  Wood  &  Co.  for  $100,  which  White  accepted  in  full  satisfaction 
of  his  demand  against  Williams,  and  afterwards  sold  for  $90.  There 
was  a  verdict  of  guilty  in  the  county  court,  and  by  his  petition  for 
certiorari  Williams  alleged  error  as  follows : 

Second.1  The  judge  erroneously  charged  that  "a  settlement  of  the 
debt  by  White  after  the  warrant  had  been  sworn  out,  and  the  defend- 
ant was  under  arrest  or  under  bond,  would  be  no  bar  to  the  prose- 
cution." 

We  are  also  of  the  opinion  that  the  second  charge  excepted  to  was 
free  from  error.  That  a  fraud  was  perpetrated  upon  White  plainly 
appeared.  As  a  result  of  this  fraud  he  was  deprived  of  the  posses- 
sion and  use  of  his  money,  and  it  is  apparent  from  the  evidence  as  a 
whole  that  there  was  a  criminal  intent  on  the  part  of  Williams  not  to 
return  the  money  at  all.  That  he  was  subsequently  forced  to  make 
restitution,  which,  as  will  have  been  seen,  was  only  partial,  did  not 
relieve  him  of  the  consequences  of  his  violation  of  the  criminal  stat- 
ute, which  was  complete  before  his  arrest.  As  well  might  it  be  said 
that  one  guilty  of  a  larceny  could  escape  prosecution  by  returning  the 
stolen  goods  after  being  arrested  for  the  offense. 

Judgment  affirmed.     All  the  Justices  concurring.3 


COMMONWEALTH  v.   CARR. 

(Superior  Court  of  Pennsylvania,  1905.    28  Pa.  Super.  Ct.  122.) 

Indictment  for  defrauding  by  false  pretenses.  The  opinion  of  the 
Superior  Court  states  the  case.  Verdict  of  guilty,  upon  which  judg- 
ment of  sentence  was  passed. 

Smith,  J.  The  crime  of  defrauding  by  false  pretenses  belongs  to 
the  class  of  misdemeanors  wTiich,  by  section  !)  of  the  act  of  penal 
procedure  of  March  31,  1860  (P.  L.  432),  may  be  settled  between  the 
complainant  and  the  offender,  at  the  discretion  of  the  examining  mag- 

i  on]y  ho  much  of  the  opinion  ns  Delates  to  condonation  is  printed. 

a  Accord:  Rape,  Commonwealth  v.  Slattery,  147  Miss.  V2:\.  is  N.  E.  390 
flS8S) ;  forjrj-rv,  Slate  v.  Tuii,  119  Mo.  421,  'J.  I  S.  W.  1010  (1894);  seduction, 
Barker  v.  Commonwealth,  90  Va.  820,  20  S.  E.  77G  (1S94);  false  pretense, 
Commonwealth  v.  Brown,  167  Mass.  144,  46  N.  ID.  1  (1896);  embezzlement, 
Dean  v.  State,  L47  End.  215,  48  N.  B.  528  (1897).  Bee,  also,  state  v.  Frlsch, 
45  La.  Ann.  1288,  I  I  Bonth.  182  (1898);  May  v.  State,  115  Ala.  14,  22  South 
611  (1896);   IVooldrldge  v.  state,  r.i  ii:,.  i.-.v,  ::s  South.  :?  (1905). 


Sec.  9)  EFFECT  OF  CONSENT,  CONDONATION,  ETC.  55 

istrate  or  the  court.  Rothermal  v.  Hughes,  134  Pa.  510,  19  Atl.  677 ; 
reier  v.  Shade,  109  Pa.  180.  It  is  essential  to  such  settlement,  how- 
ever, that  the  complainant  shall  "acknowledge  to  have  received  sat- 
isfaction for  such  injury  and  damage."  Until  this  is  done,  there  is 
no  settlement;  and  neither  partial  restitution  by  the  defendant,  nor  an 
agreement  falling  short  of  an  acknowledgment  of  satisfaction  in  the 
manner  provided  by  the  act,  bars  a  prosecution  for  the  criminal  of- 
fense. 

The  ruling  assigned  for  error  in  this  case  is  the  refusal  to  admit  in  [ 
evidence  seven  checks  given  by  the  defendant  to  the  prosecutor,  for 
amounts  aggregating  jagjlflO,  and  duly  honored,  in  partial  payment 
of  a  note  for  §9_»QJ1P  given"  by  the  defendant  for  repayment  of  the 
amount  obtainecPfay  him  from  the  prosecutor,  as  charged  in  the  in- 
dictment, with  the  prosecutor's  receipt  for  a  check  subsequently  given  f 
for  the  residue,  but  which  remained  unpaid. 

The  papers  thus  offered  in  evidence  formed  no  part  of  the  trans- 
action from  which  the  prosecution  arose,  and  there  was  nothing  in 
that  transaction  which  they  could  explain.  Since  both  the  prosecutor 
and  the  defendant  had  already  testified  to  the  payment  made  by  these 
checks,  there  was  no  question  respecting  them  requiring  further  evi- 
dence. At  best,  the  checks  were  only  cumulative  evidence  of  matters 
of  fact  not  in  dispute,  and,  as  the  case  is  presented  in  the  bill  of  ex- 
ceptions, neither  their  admission  nor  rejection  could  affect  the  defense. 
Moreover,  in  view  of  the  evidence  for  the  commonwealth,  the  partial 
restitution  by  the  defendant,  shown  by  these  checks,  was  immaterial. 
Under  the  act  referred  to,  the  defendant  can  be  relieved  from  pros- 
ecution only  by  the  complainant's  acknowledgment  of  satisfaction, 
with  the  approval  of  the  magistrate  or  the  court.  As  to  the  note  and 
check  given  by  the  defendant,  in  the  absence  of  a  stipulation  that 
they  should  be  taken  as  payment,  they  were  not  satisfaction  unless 
paid ;  and  nearly  two-thirds  of  the  amount  for  which  they  were  given 
remained  unpaid  at  the  commencement  of  the  prosecution.  Thus  the 
complainant  had  neither  acknowledged  nor  received  satisfaction,  and 
his  efforts  to  obtain  it  were  no  bar  to  the  conviction  of  the  defendant 
on  the  indictment. 

Judgment  affirmed. 

By  statute  in  some  states  certain  offenses  may  be  compromised,  in  some 
cases  with,  and  in  others  without,  the  consent  of  the  court  or  committing 
magistrate.  See  Statham  v.  State,  41  Ga.  507  (1871) ;  McDaniel  v.  State, 
27  Ga.  197  (1859) ;  Saxon  v.  Conger,  6  Or.  388  (1877) ;  Rohrheimer  v.  Win- 
ters, 126  Pa.  253,  17  Atl.  606  (1SS9).  The  New  York  Code  of  Criminal  Proce- 
dure provides  (section  663) :  "When  a  defendant  is  brought  before  a  magis- 
trate, or  is  held  to  answer  on  a  charge  of  misdemeanor,  for  which  the  per- 
son injured  by  the  act  constituting  the  crime  has  a  remedy  by  civil  action, 
the  crime  may  be  compromised,  as  provided  in  the  next  section,  except  when 
it  was  committed:  (1)  By  or  upon  an  officer  of  justice  while  in  the  execution 
of  the  duties  of  his  office;  (2)  riotously  ;  or  (3)  with  an  intent  to  commit  a 
felony." 


a  wv 


. 


56 


THE    ELEMENTS   OF    CRIME. 


(Ch.  2 


I 


*) 


VI.  Condonation  of  the  State. 

If  any  felons  will  confess  their  crimes  and  accuse  others  and  be- 
come approvers,  let  them  be  put  out  of  penance,  and  let  their  confes- 
sions be  presently  received  and  enrolled  by  the  coroner,  and  from  that 
day  forward  let  them  have  of  the  sheriffs  three  half  pence  a  day  for 
their  support. — Britton,  12. 


COMMONWEALTH  v.  ST.  JOHN. 

(Supreme  Judicial  Court  of  Massachusetts,  1899.    173  Mass.  566,  54  N.  E.  254. 

73  Am.  St.  Rep.  321.) 

Morton,  J.1  The  decisive  question  in  each  case  is  the  same,  and  the 
cases  may  therefore  properly  be  considered  together.  The  question  is 
whether  the  immunity  that  was  promised  to  the  defendants  by_  the 
city  marshal  and  by  Boyle,  the  chief  detective  of  the  police  depart- 
ment of  Springfield,  can  be  pleaded  in  bar  of  the  indictment  against 
them.  We  think  that  it  cannot.  The  immunity  and  protection  which 
may  be  promised  from  the  consequences  of  crime  on  condition  of  a  full 
disclosure  and  readiness  to  testify  are  not  a  matter  of  right,  but  rest 
in  the  last  resort  on  the  sound  judicial  discretion  of  the  court  having 
final  jurisdiction  to  sentence,  and  cannot,  therefore,  be  pleaded  in  bar. 
I  Wight  v.  Rindskopf,  43  Wis.  344;  State  v.  Moody,  69  N.  C.  529; 
State  v.  Graham,  41  N.  J.  Law,  15,  32  Am.  Rep.  174;  Rex  v.  Rudd, 
Cowp.  331;  Whart.  Crim.  Ev.  §§  439,  443;  3  Russ.  Crimes  (9th 
Am.  Ed.)  599. 

When  such  promises  are  made  by  the  public  prosecutor  or  with 
his  authority,  the  court  will  see  that  due  regard  is  paid  to  them,  and 
that  the  public  faith  which  has  been  pledged  by  him  is  duly  kept.  The 
prosecuting  officer  has  also  the  power  to  enter  a  nolle  prosequi.  It 
appears  in  each  case  that  neither  the  city  marshal  nor  Boyle  had  any 
authority  from  the  district  attorney  to  make  the  promises  or  hold  out 
the  inducements  which  they  did.  There  is  nothing  in  either  bill  of 
exceptions  tending  to  show  that  the  district  attorney  had  anything 
to  do  with  the  prosecution  in  the  police  court.  Neither  of  the  defend- 
ants appeared  before  the  grand  jury,  although  they  were  at  the  court- 
house from  day  to  day  when  the  grand  jury  was  in  session,  ready  to 
testify,  relying  on  the  promises  of  immunity  made  by  the  city  mar- 
shal and  by  Boyle;  and  there  is  nothing  tending  to  show  that  there 
was  any  expectation  or  understanding  on  the  part  of  the  district  at- 
torney that  either  was  to  testify  as  a  government  witness  in  the  supe- 
rior court,  and  neither  did  so  testify.  If  an  appeal  had  been  made  to 
the  clemency  of  the  court,  it  would  no  doubt  have  been  competent  for 


i  'j  be  opinion  only  is  printed. 


Sec.  9)  EFFECT   OF   CONSENT,  CONDONATION.   ETC.  57 

the  court  to  take  into  consideration  the  inducements  which  had  been 
held  out  and  the  promises  that  had  been  made,  if  any,  by  the  city 
marshal  and  by  Boyle.  But  what  was  done  was  to  plead  the  promises 
and  inducements  in  bar.  A  question  of  law  was  thus  presented,  and 
we  think  that  the  ruling  of  the  court  was  clearly  right. 
Exceptions  overruled.1 


VTT    n 

VII.  Custom. 

LAWRENCE  v.    STATE. 
(Court  of  Appeals  of  Texas,  18S6.    20  Tex.  App.  536.) 

The  indictment  in  this  case  charged  the  appellant  with  the  theft  of 
two  hogs,  of  the  aggregate  value  of  $40,  the  property  of  B.  C.  Hutch- 
ins7~nT  Gonzales  county,  Tex.,  on  the  1st  day  of  December,  1883.  His 
conviction  and  the  penalty  assessed,  are  expressed  in  the  verdict,  to 
which  allusion  is  made  in  the  opinion,  as  follows: 

"We,  the  jury,  find  the  defendant  guilty  of  theft  of  property  of 
value  of  less  than  $20,  and  assess  his  punishment  at  six  months  con- 
finement in  the  county  jail  and  $100  fine."  2 

White,  Presiding  Judge.  No  error  was  committed  in  refusing  to 
admit  proof  that  it  was  a  general  custom  of  the  country  that  any 
one  had  the  right  to  kill  all  unmarked  hogs  over  12  months  old  run- 
ning on  the  range.  It  is  true  that  the  law  requires  that  the  owner 
shall  place  his  earmark  upon  hogs,  sheep,  and  goats  on  or  before  they 
are  6  months  old  (Rev.  St.  1879,  art.  4558)  ;  but  a  failure  to  do  so 
does  not  affect,  much  less  destroy,  the  owner's  right  to  his  property. 
His  recorded  mark  is  not  even  required  as  the  best  evidence  of  owner- 
ship, as  is  the  case  with  brands.  Rev.  St.  1879,  art.  4561 ;  Dixon  v. 
State,  19  Tex.  134;  Johnson  v.  State,  1  Tex.  App.  333;  Love  v. 
State,  15  Tex.  App.  563;  Dreyer  v.  State,  11  Tex.  App.  632.  To 
fraudulently  take  such  property  when  unmarked  is  as  much  theft  as 
if  it  had  been  marked.  This  is  the  rule  of  the  law,  and  ignorance  of 
the  law  is  no  excuse.  Pen.  Code,  art.  14.  "A  rule  of  law  can  never  be 
subverted  by  local  custom.  To  sanction  the  doctrine  that  it  could 
would  be  to  unsettle  the  law,  would  open  for  discussion  and  neighbor- 
hood proof,  not  the  facts,  but  the  law,  and  allow  such  neighborhood 
the  right  to  claim  a  distinct  law  of  its  own,  thereby  destroying  the 
beauty  of  the  law,   which   consists  in  the   uniformity   of  its   action 

i  Where  it  is  provided  by  statute  that  no  case  shall  be  dismissed  without 
permission  of  the  presiding  judge,  an  agreement  of  the  district  attorney  to 
dismiss  a  case,  provided  the  defendant  will  become  a  witness  for  the  state, 
is  not  binding  on  the  state  if  the  judge  does  not  consent  thereto.  See  Tullis 
v.  State,  41  Tex.  Cr.  R.  87,  52  S.  W.  83  (1899). 

By  statutes  of  limitation  many  states  prescribe  that  prosecutions  must  be 
brought  within  a  specified  time  after  the  commission  of  the  offense. 
a  Part  of  this  case  is  omitted. 


58  THE   ELEMENTS    OF   CRIME.  (Ch.  2 

throughout  the  land."  Dewees  v.  Lockhart,  1  Tex.  535;  McKinney 
v.  Fort,  10  Tex.  220 ;  Russell  v.  A.  Oppenheimer  &  Co.,  White  &  W. 
Civ.  Cas.  Ct.  App.,  §  272;  Hudson  v.  Henderson,  Id.  §  353;  Davie 
v.  Lynch,  Id.  §  696. 

It  would  seem  that  the  case  of  Debbs  v.  State,  43  Tex.  650,  an- 
nounces a  different  doctrine,  and  in  so  far  as  it  does  it  is  hereby  over- 
ruled. It  is  folly  to  talk  about  an  individual  gifted  with  enough  in- 
telligence to  render  him  responsible  for  his  acts  honestly  believing 
that  he  has  the  right  to  claim  and  appropriate  all  the  unmarked  year- 
lings, sheep,  hogs,  and  goats  in  Texas  that  are  a  year  old.  Such  a 
custom  would  be  a  monstrosity,  which  the  law  would  never  tolerate. 
It  was  not  error  to  refuse  defendant's  special  requested  instruction  as 
above  quoted. 

One  of  the  instructions  given  by  the  court  to  the  jury  was  as  fol- 
lows: "The  jury  are  further  instructed  that  if  they  believe  from  the 
evidence  that  the  defendant  took  the  hogs  charged  in  the  indictment, 
yet  that  he  so  took  them  with  an  honest  belief,  although  he  may  have 
been  mistaken  in  such  belief,  that  he  had  the  right  or  the  authority  to  do 
so,  or  if  the  evidence  on  this  point  is  such  as  to  raise  in  your  minds 
a  reasonable  doubt  as  to  whether  the  defendant  did  believe  he  had 
the  right  to  take  such  hogs,  then  in  such  case  you  will  give  him  the 
benefit  of  such  doubt  and  acquit  him." 

The  instruction  fully  and  sufficiently  covered  the  important  material 
issues  in  the  case  with  reference  to  which  the  appellant  is  here  com- 
plaining. If  he  wished  more  specific  instructions  upon  these  points, 
he  should  have  asked  them,  and  presented  them  in  such  shape  as  that 
the  court  could  give  them,  whilst  a  court  may  qualify  or  modify  an  in- 
struction which  is  asked,  so  as  to  make  it  present  the  law  as  the  court 
conceives  the  law  to  be,  yet  the  court  is  not  bound  to  qualify  or  modi- 
fy an  illegal  or  erroneous  instruction,  but  may  refuse  it  outright. 
We  are  of  opinion  that  the  verdict  of  the  jury  is  sufficiently  definite 
and  specific  under  our  present  statute.  Pen.  Code,  art.  748.  There 
is  some  conflict  in  the  evidence ;  but,  if  the  testimony  of  the  state's 
witnesses  is  believed,  the  proof  is  amply  sufficient  to  support  the  ver- 
dict and  judgment,  and  the  judgment  is  affirmed. 

Affirmed.8 

2  Accord:  On  indictment  for  lareenv,  Commonwealth  v.  Doane,  1  Cush. 
(Mass.)  B  (1848)  :  riot  BankuB  v.  State,  4  Ind.  114  (1853);  Crockford  v.  State, 
7.'!  Neb.  1.  102  N.  W.  70  (1005);  Indecent  exposure,  Rpjr.  v.  Rood,  12  Cox.  O. 
C.  l  (1871);  Hendry  v.  State,  39  Fla.  235,  22  South.  647  (1897);  emlxv.zle- 
iii<-iit.  Bolln  v.  State,  51  Neb.  581,  71  N.  W.  444  (1897);  People  v.  Flechter, 
44  App.  DlV.  199,  60  N.  Y.  Supp.  777  (1899). 


Sec.  10)  EFFECT   OF   COERCION.  59 

SECTION  10.— EFFECT  OF  COERCION. 
I.  Coverture. 


If  a  ceorl  steal  a  chattel  and  bear  it  into  his  dwelling,  and  it  be  at- 
tached therein,  then  shall  he  be  guilty  for  his  part,  without  his  wife, 
for  she  must  obey  her  lord.  If  she  dare  to  declare  by  oath  that  she 
tasted  not  of  the  stolen  property,  let  her  take  her  third  part.  Laws  of 
King  Ine.,  c.  57. 

A  wife,  however,  who  is  the  spouse  of  a  thief,  shall  not  be  liable  for 
the  act  of  the  man,  because  she  ought  not  to  accuse  her  husband  nor 
to  disclose  his  theft  or  felony,  since  she  has  not  any  power  over  herself, 
but  her  husband  has.  She  ought  not,  however,  to  consent  to  the  fel- 
ony of  her  husband,  nor  to  be  his  confederate.  *  *  *  It  is  not, 
therefore,  in  every  case  that  the  woman  is  to  be  set  free,  on  account  of 
her  counsel,  aid,  or  consent,  according  as  they  have  been  accomplices 
in  the  crime,  they  shall  be  partakers  in  the  punishment.  Bracton,  book 
3,  c.  32. 


SARAH  CONNOLLY'S  CASE. 
(Durham  Assizes,  1829.    2  Lew.  229.) 

The  prisoner  was  indicted  for  uttering  base  coin. 

The  evidence  was  that  she  had  gone  from  house  to  house  uttering 
base  coin,  and  that  her  husband  accompanied  her  to  the  door,  but  did 
not  go  in. 

Bayley,  J.,  directed  the  jury  to  infer  that  she  was  acting  under  the 
coercion  of  her  husband,  and  to  find  her  not  guilty. 


REX   v.    HUGHES. 
(Lancaster  Assizes,  1813.    2  Lew.  229.) 

Martha  Hughes,  the  wife  of  Patrick  Hughes,  was  indicted  for  forg- 
ing and  uttering  three  £2  Bank  of  England  notes. 

James  Piatt  proved  that  he  went  to  the  shop  of  the  prisoner's  hus- 
band, in  consequence  of  a  conversation  which  he  had  had  some  time 
before  with  the  husband.  The  husband  was  not  present.  The  pris- 
oner beckoned  him  to  go  into  an  inner  room,  into  which  she  fol- 
lowed him,  when  he  told  her  what  her  husband  had  said  to  him. 
They  then  agreed  about  the  business,  and  the  witness  bought  of  the 
prisoner  three  £2  notes  at  £1  4s.  each. 


60  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

The  witness  paid  her  four  £1  notes  and  was  to  receive  8s.  in  change. 
When  he  was  putting  the  notes  into  his  pocketbook,  and  before  he 
received  the  change,  the  husband  put  his  head  into  the  room  and 
looked  in,  but  did  not  come  in  or  interfere  in  the  business,  further 
than  by  saying,  "Get  on  with  you!"  When  the  witness  and  the 
prisoner  returned  into  the  shop,  the  husband  was  there  and  the  pris- 
oner gave  him  the  change,  and  both  the  prisoner  and  the  husband 
cautioned  him  to  be  careful. 

On  these  circumstances  being  proved,  Cross,  for  the  prisoner,  ob- 
jected that  they  clearly  established  that  she  acted  under  the  coercion 
of  her  husband.  Supposing  .both  husband  and  wife  on  their  trial, 
this  evidence  would  be  sufficient  to  convict  him;  and  he  submitted 
that,  if  so,  she  must  in  this  case  be  acquitted.  He  cited  2  East's 
P.  C.  259:  "If  a  wife  be  guilty  of  larceny  in  company  with  her 
husband,  both  of  them  may  be  indicted;  and  if  the  husband  be  con- 
victed, the  wife  shall  be  acquitted."  1  Hale,  46;  Kelynge,  37:  "But 
if  the  husband  be  acquitted,  and  it  appear  that  the  felony  were  by 
her  own  voluntary  act  (by  which  must  be  understood  that  her  hus- 
band, if  present,  had  no  knowledge  of  or  participation  in  the  fact), 
she  may,  upon  the  same  indictment,  be  convicted,  for  the  charge  is 
joint  and  several."  The  acquittal  or  conviction,  therefore,  of  the 
husband,  regulates  that  of  the  wife.  Here  the  husband  might  have 
been  convicted. 

Thompson,  B.  (stopping  Park  and  Rain).  I  am  very  clear  as  to 
the  law  on  this  point. 

The  law,  out  of  tenderness  to  the  wife,  if  a  felony  be  committed 
in  the  presence  of  the  husband,  raises  a  presumption  prima  facie, 
and  prima  facie  only  (as  is  strongly  laid  down  by  Lord  Hale),  that 
it  was  done  under  his  coercion.  But  it  is  absolutely  necessary  that 
the  husband  should  be  actually  present  and  taking  a  part  in  the 
transaction. 

Here  it  is  entirely  the  act  of  the  wife.  It  is,  indeed,  in  consequence 
of  a  communication  previously  with  the  husband  that  the  witness  ap- 
plies to  the  wife;  but  she  is  ready  to  deal,  and  has  on  her  person 
the  articles  which  she  delivers  to  the  witness. 

There  was  a  putting  off  before  the  husband  came;  and  it  was 
sufficient  if,  before  that  time,  she  did  that  which  was  necessary  to 
complete  the  crime.  The  coercion  must  be  at  the  time  of  the  act 
done,  and  then  the  law,  out  of  tenderness,  refers  it,  prima  facie,  to 
his  coercion;  but,  when  it  has  been  completed  in  his  absence,  no 
subsequent  act  of  his  (although  it  might  possibly  make  him  an  ac- 
cessory to  the  felony  of  his  wife)  can  be  referred  to  what  was  done, 
in  his  absence. 

Objection  overruled. 

"When  coercion  is  once  established,  it  Bhould  shield  the  wife — at  least 
until  it  appears  thai  sii«'  bas  been  relieved  from  its  Influence  and  we  do  n<>f 
thins  that,  after  being  coerced  Into  giving  assistance  to  her  husband,  slmpty 


Sec.  10)  EFFECT   OF   COERCION.  61 

SEILER  v.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1879.     77  N.  T.  411.) 

Folger,  J.1  The  most  that  can  be  claimed  for  the  evidence  in  this 
case  is  that  the  plaintiff  in  error  was  in  company  with  the  man 
Brown,  just  before  and  just  after  the  larcenous  act.  She  was  not 
near  to  him  when  it  was  done.     He  was  200   feet  or  more  away. 

because  she  may  be  the  most  active  in  consummating  the  offense,  that  this 
should,  as  matter  of  law,  make  her  guilty.  On  the  contrary,  the  question 
should  still  depend  on  the  cause  of  her  increased  activity,  and  not  upon  the 
fact  of  such  activity.  The  presence  and  constraint  of  her  husband  may  still 
be  the  cause,  and  not  her  own  wickedness."  Simpson,  C.  J.,  in  State  v.  Hous- 
ton, 29  S.  C.  108,  6  S.  E.  943  (18S8). 

i  Part  of  this  case  is  omitted. 

"There  was  a  case  of  arson  before  me  on  the  Home  Circuit.  The  man 
and  wife  were  tried  together,  and  it  appeared  that  the  man,  though  present, 
was  a  cripple,  and  bed-ridden  in  the  room,  and  I  held,  after  conferring  with 
my  Lord  Chief  Justice  Tindal,  that  the  circumstances  und^r  which  the  man 
was  repelled  the  presumption  of  coercion."  Vaughan,  J.,  in  Reg.  v.  Cruse, 
2  Moo.  53  (1838). 

Under  a  statute  allowing,  but  not  compelling,  a  wife  to  testify  in  a  crim- 
inal case  in  which  her  husband  is  defendant,  if,  in  giving  her  testimony,  her 
husband  being  present,  she  commits  perjury,  the  presumption  of  coercion 
does  not  arise.  Commonwealth  v.  Moore,  162  Mass.  441,  38  N.  E.  1120  (1894). 
See,  also,  Smith  v.  Meyers,  54  Neb.  1,  74  N.  W.  277  (1898).  Nor  does  the 
presumption  arise  on  an  indictment  for  keeping  a  gaming  house,  Rex  v.  Dix- 
on, 10  Mod.  335  (1715) ;  or  a  bawdy  house,  Reg.  v:  Williams,  10  Mod.  63 
(1711),  even  though  her  husband  resided  in  the  house  and  hired,  furnished, 
and  provided  for  it,  Commonwealth  v.  Cheney,  114  Mass.  281  (1873). 

Gantt,  P.  J.,  in  State  v.  Ma  Foo,  110  Mo.  7,  19  S.  W.  222,  33  Am.  St.  Rep. 
414  (1S91):  "Learned  counsel  for  defendant  desire  us  to  ingraft  an  addi- 
tional modification  on  this  rule  of  evidence,  and  require  the  state  to  go  fur- 
ther and  prove  that  the  husband  not  only  was  not  the  inciter  or  responsible 
criminal  agent  in  the  commission  of  the  crime,  but  that  he  actually  disap- 
proved it.  and,  in  the  absence  of  evidence  of  his  disapproval,  the  wife  must 
be  acquitted.  This  is  not  the  law.  There  is  little  in  the  present  organization 
of  society  upon  which  the  prima  facie  presumption # itself  can  stand,  and  cer- 
tainly nothing  calling  for  any  extension  of  the  presumption." 

"Before  Somerville's  Case,  26  Eliz.,  and  Somerset's  Case,  A.  D.  1615,  I  find 
no  exception  to  the  general  rule  that  the  coercion  of  the  husband  excuses 
the  act  of  the  wife.  See  27  Ass.  40,  Stamf.  P.  C.  26,  27,  142 ;  Poulton  de 
Pace  Regis,  130  Br.  Ab.  Coron.  108;  Fitz.  Ab.  Coron.  130,  ISO,  199.  But 
after  these  cases  I  find  the  following  exceptions  in  the  books :  Bac.  Max.  57, 
except  treason  only.  Dalton,  c.  147,  treason  and  murder,  citing  for  latter 
Mar.  Lect.  12  (which  I  conceive  refers  to  the  reading  of  Marrow,  a  Master  In 
Chancery  in  the  time  of  Henry  VII.  See  Willes  v.  Bridger,  2  B.  &  A.  2S2). 
1  Hale,  P.  C.  pp.  45,  47,  treason,  murder,  and  homicide ;  and  page  434,  trea- 
son, murder,  and  manslaughter;  Kel.  31,  an  obiter  dictum,  murder  only; 
Hawk.  b.  1,  c.  1,  §  11,  treason,  murder,  and  robbery;  Bl.  Com.  vol.  1,  p.  'lit. 
treason  and  murder ;  vol.  4,  p.  29,  treason  and  mala  in  se,  as  murder  and 
the  like.  Hale  therefrom  alone  excepts  manslaughter,  and  Hawkins  intro- 
duces robbery,  without  any  authority  for  so  doing;  and,  on  the  contrary. 
Jn  R.  v.  Cruse,  8  C.  &  P.  545,  a  case  is  cited,  where  Burrough,  J.,  held  that 
■che  rule  extended  to  robbery.  It  seems  long  to  have  been  considered  that 
die  mere  presence  of  the  husband  was  a  coercion  (see  4  Bl.  Com.  2S),  and 
>t  was  so  contended  in  R.  v.  Cruse ;  and  Bac.  Max.  50,  expressly  states  that 
q  wife  can  neither  be  principal  nor  accessory  by  joining  with  her  husband  in 
a  felony,  because  the  law  intends  her  to  have  no  will ;  and  in  the  next  page 
he  says:     'If  husband  and  wife  join  in  committing  treason,  the  necessity  of 


62  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

It  may  be  that  his  eye  was  upon  her,  and  that  she  knew  it;  no  more 
than  that. 

It  was  not  error  for  the  court,  therefore,  to  state  to  the  jury  the 
distance  off  which  Brown  was  shown  to  be;  especially  as  it  was 
stated,  on  which  to  remark  to  them,  that  it  was  for  them  to  say  whether 
that  fact  did  not  rebut  the  presumption  that  she  was  coerced  by  him, 
and  to  find  whether  she  was  in  his  presence. 

The  request  to  charge  that  if  the  four  conspired  to  steal  she  must 
be  presumed  to  be  coerced  by  him,  if  when  she  entered  the  store 
he  was  at  the  entrance,  was  well  denied.  His  command  or  procure- 
ment would  not  excuse  her.  The  theft  was  not  done  while  he  was 
at  the  entrance.  He  had  passed  on  before  that.  It  is  the  presence 
of  the  husband  at  the  thieving  act  which  raises  the  presumption. 

The  court  was  right  in  telling  "the  jury  that  the  questions  were 
whether  Brown  was  her  husband,  and  was  present  when  the  theft 
was  done.  It  was  right  in  refusing  to  charge  that  the  facts  were 
proven  from  which  coercion  was  to  be  presumed;  for  the  presence 
of  Brown  at  the  act  was  not  proven.    There  was  no  error  on  the  trial. 

The  judgment  should  be  affirmed. 

Judgment  affirmed.    All  concur. 


II.  Command. 

MEMORANDUM,    16G0. 

(Kelyng,  13.) 

Upon  the  trial  of  one  Axtell,  a  soldier  who  commanded  the  guards 
at  the  King's  Tryal,  and  at  his  murder;  he  justified  that  all  he  did 
was  as  a  soldier,  by  the  command  of  his  superior  officer,  whom  he 
must  obey  or  die.  It  was  resolved  that  was  no  excuse,  for  his 
superior  was  a  traitor,  and  all  that  joined  him  in  that  act  were 
traitors,  and  did  by  that  approve  the  treason-;  and  where  the  com- 
mand is  traitorous,  then  the  obedience  to  that  command  is  also  trait- 
orous. 

obedience  doth  not  excuse  the  wife's  offenBe,  as  it  does  in  felony.'  *  *  * 
Dalton  cites  the  exception  from  Bacon  without  the  rule,  and  Hale  follows 
Dalton,  :■  i m i  the  other  writers  follow  Hale;  and  it  seems  by  no  means  Improb- 
able thai  the  e: ptlons  of  treason  and  murder,  which  seem  to  have  sprung 

from  Somervllte's  and  Somerset's  Cases,  and  which  were  probably  exceptions 
to  the  rule  as  stated  by  Bacon,  have  been  continued  by  writers  without  ad- 
verting to  their  origin,  or  observing  that  the  presence  of  the  husband  is  no 
longer  considered  an  absolute  excuse,  but  only  affords  a  prima  fade  presump- 
the  wife  acted  by  his  coercion."  Russell  on  Crimes  (International 
Bdltlon),  p.  1 16,  uote  bj  Greaves. 


Sec  10)  EFFECT   OF   COERCION.  63 

RIGGS  v.  STATE. 
(Supreme  Court  of  Tennessee,  18G6.    3  Cold.  85,  91  Am.  Dec.  272.) 

The  plaintiff  in  error  was  convicted  at  the  August  term,  1866,  of 
murder  in  the  second  degree,  and  sentenced  to  15  years'  imprison- 
ment in  the  penitentiary,  from  which  he  appealed.  Judge  James  P. 
Swan,  presiding. 

Shackelford,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  in  the  circuit  court  of  Jefferson 
county  for  the  killing  of  Capt.  Thornhill.  A  change  of  venue  was 
had  to  the  county  of  Grainger.  At  August  term,  1866,  of  the  cir- 
cuit court  of  Grainger  county,  he  was  convicted  by  a  jury,  of  mur- 
der in  the  second  degree,  and  sentenced  to  15  years'  imprisonment  in 
the  penitentiary. 

A  new  trial  was  moved  for,  which  was  overruled,  and  an  appeal 
taken  to  this  court. 

The  court,  among  other  things  not  excepted  to,  charged  the  jury 
in  substance  as  follows:  "A  soldier  in  the  service  of  the  United 
States  is  bound  to  obey  all  lawful  orders  of  his  superior  officers, 
or  officers  over  him,  and  all  he  may  do  in  obeying  such  lawful  or- 
ders constitutes  no  offense  as  to  him.  But  an  order,  illegal  in  itself 
and  not  justified  by  the  rules  and  usages  of  war,  or  in  its  substance 
being  clearly  illegal,  so  that  a  man  of  ordinary  sense  and  under- 
standing would  know,  as  soon  as  he  heard  the  order  read  or  given, 
that  such  order  was  illegal,  would  afford  a  private  no  protection  for 
a  crime  committed  under  such  order,  provided  the  act  with  which 
he  may  be  charged  has  all  the  ingredients  in  it  which  may  be  neces- 
sary to  constitute  the  same  a  crime  in  law.  Any  order  given  by  an 
officer  to  his  private,  which  does  not  expressly  and  clearly  show  on 
its  face,  or  in  the  body  thereof,  its  own  illegality,  the  soldier  would 
be  bound  to  obey,  and  such  order  would  be  a  protection  to  him. 
No  person  in  the  military  service  has  any  right  to  commit  a  crime 
in  law,  contrary  to  the  rules  and  usages  of  war,  and  outside  of  the 
purposes  thereof;  and  the  officers  are  all  amenable  for  all  crimes 
thus  committed,  and  the  privates  likewise  are  answerable  to  the 
law  for  crimes  committed  in  obeying  all  orders  illegal  on  their  face 
and  in  their  substance,  when  such  illegality  appears  at  once  to  a  com- 
mon mind,  on  hearing  them  read  or  given."  We  think  there  is  no 
error  in  this  charge. 

It  is  a  well-settled  principle  a  soldier  is  not  bound  to  obey  an  il- 
legal order.  If  he  does,  and  commits  an  offense,  it  is  no  justifica- 
tion to  him,  and  he  is  liable  to  be  proceeded  against  and  punished. 
This  principle  was  settled  in  the  Supreme  Court  of  the  United  States 
in  the  case  of  Mitchell  v.  Harmony,  13  How.  129,  14  L.  Ed.  75,  in 


64  THE    ELEMENTS   OF   CRIME.  (Cll.  2 

which  it  was  held  a  military  officer  cannot  rely  on  an  apparently 
unlawful  order  of  his  superior  as  a  justification. 

The  same  principle  was  recognized  and  settled  in  the  Court  of 
King's  Bench,  reported  in  1  Cowp.  ISO.  In  this  case  a  captain  in 
the  English  navy,  by  orders  of  the  British  admiral,  pulled  down  the 
houses  of  some  suttlers  on  the  coast  of  Nova  Scotia,  who  were 
supplying  the  sailors  with  spirituous  liquors,  and  the  health  of  the 
sailors  was  thereby  much  injured.  The  motive  was  a  laudable  one, 
and  done  for  the  public  service.  The  courts  say  it  was  an  invasion 
of  the  rights  of  private  property  without  the  authority  of  law,  and 
the  officer  who  executed  the  order  was  held  liable.  This  being  the 
rule  in  civil  causes,  the  principle  would  be  more  strictly  applied  in 
criminal  ones.  No  order,  if  any  was  given,  could  justify  the  killing 
of  Capt.  Thornhill,  and  the  parties  who  did  the  act  are  amenable 
to  the  criminal  law.  There  being  no  error  in  the  charge  of  the 
court,  the  question  arises:  Do  the  facts  in  the  record  sustain  the 
verdict  of  the  jury?  And  under  the  rulings  of  this  court  it  is  made 
our  duty  in  criminal  causes  to  examine  the  proof  and  see  if  it  war- 
rants the  conviction.1 

The  proof  does  not  satisfy  us  the  prisoner  aided  or  abetted  in  the 
unlawful  act  of  killing.  A  private  soldier,  when  detailed  by  his 
superior  officer,  has  no  discretion.  By  the  rules  of  war  he  is  bound 
to  obey  the  orders  of  those  in  command.  When  he  enters  the  serv- 
ice, unconditional  submission  to  the  lawful  orders  of  his  superior 
officers  is  a  duty  imposed  upon  him  by  his  oath  and  the  articles  of 
war.  The  principle  of  law,  "when  men  are  assembled  for  an  illegal 
purpose,  and  the  commission  of  an  offense  by  any  one  of  the  party 
is  the  act  of  the  whole,"  is  not  applicable  to  this  case.  The  plain- 
tiff in  error  being  a  private  soldier,  being  detailed,  was  bound  to 
obey  the  lawful  order.  The  going  to  Richard  Thornhill's  without 
a  knowledge  of  the  purpose  for  which  the  force  was  detailed  was 
not  an  illegal  act;  he  had  no  right  to  inquire  of  the  officer  the  ob- 
ject and  purpose  of  the  detail,  or  what  he  had  in  view;  and,  if  he  was 
present,  unless  he  participated  in  the  killing  by  firing,  or  aided  and 
abetted  in  the  act  of  killing,  he  would  not  be  criminally  responsible. 
It  is  stated  as  a  principle  of  law,  in  1  Hale,  Pleas  of  the  Crown, 
•111,  and  which  we  recognize  and  approve:  "Although  if  many 
((line  upon  :m  unlawful  design,  and  one  of  the  company  kill  the  ad- 
verse party  in  pursuance  of  that  design,  all  are  principals,  yet  if  many 
''lnr  upon  :i  lawful  account,  and  one  of  the  company  kill  an- 
of  an  adverse  party,  without  any  particular  abetment  of  the 
rest  to  this  fact  of  homicide,  they  arc  not  all  guilty  that  are  of  the 
company,  hut  only  ilmsc  that  gave  the  stroke,  or  actually  abetted  them 
to  '1"  it."     We  forbear  to  comment   further  upon  the  testimony,  as 

i  Pari  of  i  in1  opinion  is  omll  ted 


Sec.  10)  EFFECT   OF   COERCION.  65 

the  case  will  undergo  another  investigation  before  a  jury.  We  are 
not  satisfied,  from  the  proofs  in  this  record,  with  the  verdict  of  the 
jury. 

The  judgment  will  be  reversed,  and  a  new  trial  awarded.2 


RESPUBLICA  v.  McCARTY. 

(Supreme  Court  of  Pennsylvania,  1781.     2  Dall.  86,  1  L.  Ed.  300.) 

The  defendant  was  indicted  for  high  treason,  in  levying  war,  etc., 
by  joining  the  armies  of  the  king  of  Great  Britain. 

McKean,  C.  J.8  The  crime  imputed  to  the  defendant  by  the  in- 
dictment is  that  of  levying  war,  by  joining  the  armies  of  the  king 
of  Great  Britain.  Enlisting,  or  procuring  any  person  to  be  enlisted, 
in  the  service  of  the  enemy,  is  clearly  an  act  of  treason.  By  the  de- 
fendant's own  confession  it  appears  that  he  actually  enlisted  in  a 
corps  belonging  to  the  enemy;  but  it  also  appears  that  he  had  pre- 
viously been  taken  prisoner  by  them  and  confined  at  Wilmington. 
He  remained,  however,  with  the  British  troops  for  10  or  11  months, 
during  which  he  might  easily  have  accomplished  his  escape;  ano 
it  must  be  remembered  that,  in  the  eye  of  the  law,  nothing  will  ex- 
cuse the  act  of  joining  an  enemy  but  the  fear  of  immediate  death — 
not  the  fear  of  any  inferior  personal  injury,  nor  the  apprehension  oi. 
any  outrage  upon  property.  But,  had  the  defendant  enlisted  merely 
from  the  fear  of  famishing,  and  with  a  sincere  intention  to  make  his 
escape,  the  fear  could  not  surely  always  continue,  nor  could  his  in- 
tention remain  unexecuted  for  so  long  a  period.* 

Verdict — Not  guilty. 

2  Accord:  U.  S.  v.  Jones,  3  Wash.  C.  C.  (U.  S.)  209,  Fed.  Cas.  No.  15,494 
(1813) ;    In  re  Fair  (C.  C.)  100  Fed.  149  (1900). 

See.  for  command  of  master,  Sanders  v.  State  (Tex.  Cr.  App.)  26  S.  W.  62 
(1894);  parent,  People  v.  Richmond,  29  Cal.  414  (1S66).  Compare  Reg.  v. 
Boober,  4  Cox,  C.  C  272  (1850). 

In  State  v.  Ash,  33  Or.  SO,  54  Pac.  184  (1S98),  it  was  held  that  a  police 
officer,  who  agreed  for  a  reward  to  protect  the  keeper  of  a  bawdy  house  from 
prosecution,  could  not  escape  responsibility  therefor  by  proof  that  in  so  do- 
ing he  acted  under  the  orders  of  his  superior  officer,  to  whom  he  gave  the 
reward. 

3  Part  of  this  case  is  omitted. 

4  Accord:  U.  S.  v.  Vigol,  2  Dall.  346,  Fed.  Cas.  No.  16.621,  1  L.  Ed.  409 
(1795);  mutiny,  U.  S.  v.  Haskell,  4  Wash.  C.  C.  402,  Fed.  Cas.  No.  15,321 
(1823). 

Mik.Ce.L.— 5 


66  THE    ELEMENTS   OF   CRIME.  (Ch.  2 

BREWER  v.  STATE. 

(Supreme  Court  of  Arkausas,  1904.    72  Ark.  145,  78  S.  W.  773.) 

Riddick,  J.1  The  only  remaining  questions  relate  to  the  instruc- 
tions given  by  the  court  to  the  jury.  The  court  refused  to  instruct 
the  jury  that,  if  the  defendant  shot  Dortch  under  compulsion  by 
third  parties  to  save  his  own  life,  they  should  acquit,  but,  on  the 
contrary,  told  them  that,  though  one  may  lawfully  kill  an  assailant, 
if  it  be  necessary  to  save  his  own  life,  he  cannot  lawfully  slay  an 
innocent  third  person,  even  to  save  his  own  life,  but  ought  to  die 
himself,  rather  than  take  the  life  of  an  innocent  person.  The  question 
presented  by  the  exception  to  this  ruling  has  been  discussed  by  text- 
writers  more  often  than  by  the  courts.  But  we  feel  very  certain 
that  unlawful  compulsion  of  the  kind  set  up  as  a  defense  in  this  case 
is  not  a  sufficient  justification  for  taking  the  life  of  an  innocent  per- 
son. Sand.  &  H.  Dig.  §  1448;  Arp  v.  State,  97  Ala.  5,  12  South. 
301,  19  L.  R.  A.  357,  38  Am.  St.  Rep.  137;  Reg.  v.  Tyler,  8  Car.  & 
P.  616;  Reg.  v.  Dudley,  14  Q.  B.  Div.  273;  4  Blackstone,  30. 
Whether,  under  some  circumstances,  compulsion  of  that  kind  might 
go  to  reduce  the  grade  of  the  offense  and  in  mitigation  of  the  pun- 
ishment, we  need  not  stop  to  inquire;  for,  if  we  shall  concede  that 
this  was  so,  the  evidence  here  does  not  establish  any  such  compul- 
sion. The  only  evidence  to  prove  compulsion  was  a  confession  made 
by  the  defendant.  While  all  parts  of  the  confession  must  be  con- 
sidered, yet  the  jury  were  not  required  to  believe  such  portions  of 
it  as  seemed  to  them  unreasonable  and  improbable.  And,  though 
they  found  that  Brewer  killed  Dortch,  they  no  doubt  rejected  the 
improbable  story  that  he  did  so  under  compulsion  by  armed  men, 
who  walked  through  the  woods  with  masks  on  their  faces,  stopping 
occasionally  to  rub  on  the  bottom  of  their  shoes  a  red-looking  liquid, 
which  they  kept  in  a  bottle.  This  part  of  the  confession  was  cer- 
tainly uncorroborated,  and  was  first  concocted  and  told  by  Brewer  to 
one  of  his  friends  under  the  belief  that  bloodhounds  were  about 
to  be  put  on  the  trail.  It  was  no  doubt  an  effort  on  his  part  to  put 
forth  some  plausible  excuse  that  might  shield  him  in  the  event  he 
was  run  down  and  arrested.  But,  if  we  take  this  confession  as  liter- 
ally true,  it  does  not  show  that  defendant  had  no  other  option,  ex- 
cept to  lose  his  own  life  or  take  that  of  Dortch.  He  said  that  two 
men  armed  with  a  shotgun  and  pistol  captured  him,  and  compelled 
him  to  pilot  them  to  the  Dortch  place,  and  then  gave  him  one  of  the 
iins  and  ordered  him  to  kill  Dortch;  but  he  does  not  show 
why,  after  getting  posses  ion  "f  the  gun,  he  did  not  turn  upon  them 
and  defend  himself.  The  tracks  where  defendanl  lav  in  wait  showed 
that  only  one  man  was  there,  and  the  circumstances  indicated  thai 
besides  Dortch  there  was  presenl  at  the  time  he  was  killed  only  the 

i  Pnrf  <>f  the  opinion  I    omll ted. 


SeC.  10)  EFFECT   OF   COERCION.  67 

man  who  fired  the  shot.  A  compulsion  that  could  reduce  or  mitigate 
such  a  crime  must  have  been  more  than  a  fear  of  future  harm.  It 
should  appear  that  the  danger  of  resisting  such  a  force  was  imme- 
diate and  impending.  The  confession  does  not  locate  the  position 
of  the  masked  men  at  the  time  the  shot  was  fired,  or  show  that 
there  was  no  alternative  for  the  defendant,  except  to  kill  Dortch  or 
lose  his  own  life.  For  this  reason  we  think  that  the  presiding  judge 
was  fully  justified  in  telling  the  jury  that  under  these  circumstances 
compulsion  was  no  justification  or  excuse  for  the  crime  charged. 

On  the  whole  case  we  find  no  prejudicial  error,  and  are  convinced 
that  the  judgment  was  right.     It  is  therefore  affirmed.2 


III.  Necessity. 
UNITED    STATES    v.    ASHTON. 

(Circuit  Court  of  the  United  States,  1834.     2  Sumn.  13,  Fed.  Cas.  No.  14,470.) 

Indictment  against  the  defendants  for  an  endeavor  to  commit  a 
revolt  on  board  the  ship  Merrimack,  of  Boston,  on  the  high  seas. 
Plea,  not  guilty. 

At  the  trial  it  appeared  that  the  ship  sailed  from  Boston  on  Sat- 
urday, 23d  of  August,  1834,  on  a  voyage  to  Rio  Janeiro,  under  the 
command  of  Capt.  Eldridge.  She  was  then  in  a  leaky  condition,  and 
some  efforts  had  been  made  by  the  captain  to  conceal  the  extent  of 
the  leakage  from  the  crew  at  the  time  of  their  shipment  and  coming 

2  See,  also,  Leach  v.  State,  99  Tenn.  584.  42  S.  W.  195  (1897) ;  State  v. 
Fisher,  23  Mont.  540,  59  Pac.  919  (1S99).  But  see  People  v.  Repke,  103  Mich. 
459.  61  N.  W.  861  (1895). 

"The  appellant  has  been  indicted  and  convicted  of  the  offense  of  perjury. 
The  sole  defense  attempted  to  be  proved  was  that  appellant's  life  had  been 
threatened  by  one  Veto  Dodd,  unless  he  should  go  into  court  and  testify  so 
as  to  criminate  himself  and  certain  other  persons  who  were  suspected  of 
having  murdered  a  negro  man  and  his  wife,  tenants  upon  the  farm  of  Dodd. 

"We  can  conceive  of  cases  in  which  an  act,  criminal  in  its  nature,  may  be 
committed  by  one  under  such  circumstances  of  coercion  as  to  free  him  from 
criminality.  The  impelling  danger,  however,  should  be  present,  imminent, 
and  impending,  and  not  to  be  avoided. 

"Such  was  not  the  character  of  the  duress  here,  and  the  appellant  was 
not  only  possessed  of  the  power  and  right  of  protecting  himself,  but  he  also 
could  have  appealed  to  the  law  to  shield  him  from  the  threatened  danger. 

"If  Dodd,  by  whom  the  threats  were  made,  should  attempt  to  carry  them 
into  execution,  the  appellant  might  lawfully  oppose  force  to  force,  and,  if 
necessary,  might,  in  the  defense  of  his  person,  lawfully  slay  his  assailant : 
but,  if  appellant  feared  the  superior  strength  or  courage  of  Dodd,  he  might 
have  invoked  the  protection  of  the  court." 

Cooper,  J.,  in  Bain  v.  State,  67  Miss.  557,  7  South.  40S  (1S90). 

There  are  Intimations  in  some  of  the  cases  that  duress,  though  it  does  not 
excuse  a  homicide,  may  reduce  the  grade  of  the  crime,  as  it  may  prevent 
the  defendant  forming  a  "willful,  deliberate,  and  premeditated  intent."  See 
Rizzolo  v.  Commonwealth,  126  Pa.  54,  17  Atl.  520  (1889) ;  State  v.  Nargashian, 
26  R.  I.  299,  58  Atl.  953,  106  Am.   St.   Rep.  715  (1904). 


63  THE    ELEMENTS    OF   CRIME.  (Ch.  2 

on  board.  The  ship  was  29  years  old.  The  crew,  on  discovering 
the  leak  in  going  out  of  port,  expressed  a  wish  to  the  captain  to 
return  and  have  repairs  made.  The  captain  declined,  but  said  if  the 
leak  increased  he  would  return.  On  Wednesday,  the  27th  of  August, 
the  vessel  encountered  a  gale  and  strained  very  much ;  and  the  crew 
were  up  all  the  night  pumping,  and  were  much  exhausted.  The 
gale  still  continued,  with  every  appearance  of  a  continuance.  The 
crew  then  conversed  together,  and  went  to  the  captain  and  requested 
him  to  return  to  Boston  to  repair,  and  expressed  a  firm  belief  that 
the  ship  was  unseaworthy  and  that  they  were  all  in  imminent  danger 
of  their  lives.  The  captain  declined,  but  proposed  that  they  should 
keep  on,  and,  if  necessary,  he  would  stop  at  the  Western  Islands  for 
repairs.  The  crew  insisted  that  he  ought  to  return  back  to  Boston, 
and  that  the  hazard  of  proceeding  on  the  voyage  was  imminent ;  and 
then,  finding  that  the  captain  persisted  in  going  on  the  voyage,  de- 
claring that  he  thought  the  vessel  seaworthy,  they  refused  to  do 
duty  any  further,  and  seceded,  and  remained  below  several  hours, 
during  which  time  the  gale  increased,  and  the  ship  was  in  great 
danger.  The  captain,  at  length,  in  order  to  induce  the  crew  to  re- 
turn to  duty,  -agreed  to  return  to  Boston ;  and  accordingly  he  wore 
ship  and  returned  to  Boston,  where  he  arrived  on  the  ninth  day  after 
her  departure.  The  crew  at  all  other  times  during  the  voyage  and 
in  all  other  respects  conducted  themselves  unexceptionably. 

Story,  J.1  I  do  not  think  that  the  act  for  the  government  and  regu- 
lation of  seamen  in  the  merchants'  service  (Act  July  20,  1790,  c.  50, 
1  Stat.  131)  has  any  bearing  on  the  present  case.  The  third  section 
of  that  act  merely  provides  for  the  case  where  the  mate  and  a  ma- 
jority of  the  crew  of  a  vessel  bound  on  a  foreign  voyage,  after  the 
;e  is  begun  and  before  the  vessel  shall  have  left  the  land,  shall 
discover  the  vessel  to  be  too  leaky  or  otherwise  unfit  to  proceed  on 
the  voyage,  and  under  such  circumstances  it  makes  it  the  duty  of 
the  master  to  return  to  port.  It  does  not  in  the  slightest  manner 
trench  upon  the  general  rights  and  duties  of  the  seamen  under  the 
maritime  law,  but  merely  imposes  an  absolute  duty  on  the  master  in 
the  case  specified.  All  other  cases  and  circumstances  remain,  there- 
fore, as  they  were  before,  to  be  governed  by  the  general  principles 
of  law.  In  the  present  case  the  combination  to  resist  the  authority 
of  the  master  is  clearly  established,  and  unless  the  seamen  were,  by 
the  circumstances,  justified  in  compelling  the  master  to  return  home, 
the  offen  e  charged  in  the  indictment  is  fully  made  out;  and  the 
onus  is  on  th<  to  i    tablish  the  justification;     If  the  ship  was 

at  the  time  clearly  seaworthy  and  fit  for  the  voyage,  whether  the 
seamen  acted  by  fraud,  or  by  mistake,  or  upon  a  fair,  but  false,  judg- 
of  the  facts,  it  to  me  th<  •  was  committed.     If, 

on  the  other  hand,  the  ship  was  at  the  time  clearly  unseaworthy  and 

•  Part  of  thla  case  is  omil  t<  i 


Sec.  10)  EFFECT    OF   COERCION.  69 

unfit  for  the  voyage,  they  were  fully  justified  in  insisting  upon  her 
return  home,  and  were  guilty  of  no  offense.  The  law  deems  the 
lives  of  all  persons  far  more  valuable  than  any  property,  and  will 
not  permit  a  master,  under  color  of  his  acknowledged  authority  on 
board  of  the  ship,  from  rashness,  or  passion,  or  ignorance,  to  hazard 
the  lives  of  the  crew  in  a  crazy  ship,  or  compel  them  to  encounter 
risks  and  perform  duties  which  are  so  imminent  and  overwhelming 
that  they  can  escape  only  by  the  most  extraordinary  chances,  and, 
as  it  were,  by  miraculous  exertions.  If  he  should  order  them  into 
a  boat  on  the  ocean,  at  a  time  when  they  could  scarcely  fail  of  being 
swamped  or  foundered,  they  would  not  be  bound  to  obey.  His  com- 
mands, to  be  entitled  to  obedience,  must,  under  the  circumstances, 
be  reasonable.  The  proposition  cannot  for  a  moment  be  maintained 
that  the  crew  are  bound  to  proceed  on  the  voyage  in  an  unseaworthy 
and  rotten  ship,  at  the  imminent  hazard  of  their  lives,  merely  because 
the  master  and  officers  choose  in  their  rashness  of  judgment  to  pro- 
ceed. It  is  true  that  in  all  cases  of  doubt  the  judgment  of  the  master 
and  officers  ought  to  have  great  weight,  and  from  their  superior 
intelligence,  ability,  and  skill  it  may  be  relied  on  with  far  more  con- 
fidence than  that  of  the  crew.  They  are  embarked  in  the  same 
common  enterprise  and  risks,  and  it  cannot  be  ordinarily  presumed 
that  they  will  hazard  their  own  lives, in  a  vehicle  which  is  really  unfit 
for  the  voyage.  Still,  if  the  case  does  occur,  if  they  will  insist  on 
proceeding,  no  matter  at  what  hazard  to  life,  and  the  ship  is  unsea- 
worthy, I  am  clear  that  the  crew  have  a  right  to  resist,  and  to  refuse 
obedience.  It  is  a  case  of  justifiable  self-defense  against  an  undue 
exercise  of  power.  Neither  of  these  cases  is  of  any  real  difficulty. 
But  the  case  of  difficulty  is  this :  Suppose  the  ship  to  be  in  that 
state  in  which  the  presumption  of  apparent  unseaworthiness  really 
arises,  and  the  crew  bona  fide  act  upon  that  presumption,  and  the 
jury  should  be  of  opinion  that  they  acted  justifiably  upon  that  pre- 
sumption at  the  time;  and  suppose  upon  the  trial  it  should  turn  out 
(as  in  the  present  case  it  may)  that  there  is  real  doubt  whether  the 
ship  be  seaworthy  or  not,  or  upon  the  evidence  the  case  is  nearly 
balanced  in  the  conflict  of  credible,  as  well  as  competent,  testimony, 
and  the  jury  should  on  the  whole  deem  the  preponderance  of  evi- 
dence just  enough  to  turn  the  scale  in  favor  of  seaworthiness,  but 
not  to  place  it  entirely  beyond  doubt;  I  ask  whether,  under  such 
circumstances,  the  crew  ought  to  be  convicted  of  the  offense  charged, 
having  acted  upon  their  best  judgment  fairly,  and  in  a  case  where 
respectable,  intelligent,  and  impartial  witnesses  should  assert  that 
they  should  have  done  the  same,  and  where  even  the  jury  them- 
selves might  adopt  the  same  opinion,  although  there  might  be  an 
error  in  the  fact  of  seaworthiness,  as  established  at  the  trial?  I  have 
great  difficulty  in  coming  to  the  conclusion  that  under  such  circum- 
stances the  crew  were  guilty  of  the  offense  charged.  I  am  aware 
of  the  dangers  of  not  upholding  with  a  steady  hand  the  authority 


70  THE    ELEMENTS   OF   CRIME.  (Ch.   2 

of  the  master;  but  I  am  not  the  less  aware  of  the  necessity  of  hav- 
ing a  just  and  tender  regard  for  life.  Seamen,  when  they  contract 
for  a  voyage,  do  not  contract  to  hazard  their  lives  against  all  perils 
which  the  master  may  choose  they  shall  encounter.  They  contract 
only  to  do  their  duty  and  meet  the  ordinary  perils,  and  to  obey  reason- 
able orders.  The  relation  between  master  and  seaman  is  created  by 
the  contract;  but  that  relation,  when  created,  is  governed  by  the 
general  principles  of  law.  Unlimited  submission  does  not  belong  to 
that  relation.  I  have  great  repugnance  to  creating  constructive  of- 
fenses, and  especially  where  there  is  perfect  integrity  of  intention. 
I  am  aware  that  in  some  cases  crimes  may  be  committed  independ- 
ently of  any  supposed  intention  to  do  wrong.  But  in  most  cases, 
and  I  think  in  a  case  of  this  nature,  the  intention  and  the  act  must 
both  concur  to  constitute  an  offense.  There  are  cases  even  of  the 
highest  crimes,  as  of  homicide,  where  an  honest  and  innocent  mistake 
in  killing  another,  under  circumstances  of  a  reasonable  presumption, 
though  a  mistaken  one,  that  the  party  killed  intended  to  kill  the  other 
party,  when  the  latter  will  be  excused  by  law. 

1  have  had  this  subject  a  good  deal  in  my  thoughts  dining  the 
progress  of  this  trial  (and  the  point  is  certainly  a  new  one);  and 
the  strong  inclination  of  my  opinion  at  present  is,  subject  to  be  changed 
by  any  argument  hereafter  urged,  that  the  defendants  ought  not  to 
be  found  guilty,  if  they  acted  bona  fide  upon  reasonable  grounds  of 
belief,  that  the  ship  was  unseaworthy,  and  if  the  jury,  from  all  the 
circumstances,  are  doubtful  whether  the  ship  was  seaworthy,  or 
even  in  a  measuring  cast  should  incline  to  believe  the  ship  seaworthy. 
If  she  was  clearly  seaworthy  beyond  reasonable  doubt,  then  the  de- 
fendants ought  to  be  convicted,  for  the  facts  of  the  combination  and 
resistance  are  admitted. 

Mem.  Upon  these  suggestions  of  the  court,  the  district  attorney 
said  that  his  own  opinion  coincided  with  that  of  the  court,  and  that 
he  would  enter  a  nolle  prosequi,  but  he  had  thought  it  his  duty  to 
bring  the  case  before  the  court;  and  the  court  said  that  the  case 
was  very  properly  brought  before  it  for  decision.2 

2  In  Hog.  v.  Dudley  &  Stephens,  15  Cox,  C.  C.  024  (1884),  the  prisoners 
and  :i  boy  were  cast  away  on  the  high  seas  1,000  miles  from  land,  and  were 
compelled  to  pul  out  in  an  open  boat.  Having  drifted  for  elghl  days  with- 
out food  and  for  six  days  without  water,  the  prisoners  killed  the  lw>y,  who 

LB  quite  helpless  and  unable  to  make  any  resistance,  and  fed  upon  bis  body 
for  four  days,  when  they  were  picked  up  by  a  passing  vessel.  The  prisoners 
were  Indicted  for  murder,  and  the  jury  found  a  Bpeclal  verdict:  "That  if 
the  men  bad  aol  fed  upon  the  body  of  the  boy,  they  would  probably  have  died 
oi  famine;  thai  the  boy,  being  in  a  mucb  weaker  condition,  was  likely  to 
have  died  before  them;  thai  ar  the  time  of  the  acl  in  question  there  was  no 
in  sight,  nor  any  reasonable  prosped  of  relief;  thai  under  the  circum- 
stances there  appeared  to  the  prisoners  every  probability  that  unless  they 

then   fed,  or   very  soon   fed,   upon    the    hoy    or   one    of    themselves,    they    would 

die  of  starvation;  thai  there  was  do  appreciable  chance  of  savin-  life,  excepl 
by  killing  some  one  for  the  others  to  eat;  that,  assuming  any  necessity  to 
kin  anybody,  there  was  do  greater  aecessity  f<>r  killing  the  boy  than  of  the 


Sec.  10)  EFFECT   OF   COERCION.  71 

STATE  v.  GOFF. 

(Supreme  Court  of  Arkansas,  1859.     20  Ark.  289.) 

Mr.  Justice  Compton  delivered  the  opinion  of  the  court. 

Joshua  Goff  was  indicted  in  the  Crawford  circuit  court  for  labor- 
ing on  the  Sabbath,  etc.  The  trial  resulted  in  his  acquittal,  and  the 
state  appealed. 

The  facts  as  set  out  in  the  bill  of  exceptions,  are  briefly  these :  Goff 
was  engaged  cutting  and  binding  wheat — a  negro  man  cutting  and 
Goff  binding  after  him — on  Sunday.  For  a  week  previous  to  the 
cutting,  Goff  was  swapping  work  in  harvest  with  his  neighbors,  who 
were  afterwards  to  help  him.  Goff  was  a  poor  man,  and  had  no 
cradle  of  his  own,  and  waited  to  get  one  from  his  neighbor.  When 
his  neighbor  quit  cutting  on  Saturday  evening,  Goff  got  the  cradle 
and  hired  the  negro  to  cut  for  him  the  Sunday  following.  The  weath- 
er was  rather  unsettled;  rained  the  next  day.  Goff's  wheat  was  very 
ripe  and  wasting,  and  from  its  appearance  then  had  been  ripe  enough 
to  cut  four  or  five  days  before  that  time.  This  was  all  the  evidence 
adduced  on  the  trial. 

The  court,  on  motion  of  attorney  for  the  state,  charged  the  jury: 

(1)  That  if  they  believed  from  the  evidence  that  Goff  was  laboring 
in  and  about  tying  up  wheat  on  Sunday,  etc.,  within  one  year  next 
before  the  finding  of  the  indictment,  and  that  said  labor  was  other 
services  than  customary  household  duties,  of  daily  necessity,  comfort, 
or  charity,  they  should  find  him  guilty. 

(2)  That  the  mere  fact  of  Goff  being  a  poor  man,  and  having  no 
cradle  of  his  own,  would  not  justify  him  in  having  his  wheat  cut  and 
tying  it  up  on  Sunday. 

On  motion  of  Goff,  and  against  the  objection  of  the  attorney  for 
the  state,  the  court  further  charged  the  jury : 

(1)  That  Goff  had  a  right  to  preserve  his  property  from  waste  on 
the  Sabbath  day,  and  if  his  property  was  going  to  waste,  and  likely  to 
be  lost  by  any  unforeseen  or  unavoidable  circumstance,  he  was  justi-i 
fiable  in  laboring  to  preserve  it. 

(2)  That  if  the  jury  believe  Goff  could  not  have  saved  his  wheat 
on  any  other  day,  and  it  was  necessary  either  to  do  so  on  Sunday  or 
suffer  it  to  be  lost,  they  must  acquit. 

The  statute  provides  that  every  person  who  shall  be  found  laboring 

*    *    *    men."    Held,  by  the  whole  court,  that  the  prisoners  were  guilty  of 
murder. 

In  U.  S.  v.  Holmes,  1  Wall.  Jr.  (U.  S.)  1,  Fed.  Oas.  No.  15,383  (1842),  sailors 
and  passengers  having  suffered  shipwreck  together,  the  sailors  threw  some 
of  the  passengers  overboard  to  keep  the  boat  from  sinking,  and,  on  an  in- 
dictment for  manslaughter,  Baldwin,  J.,  charged  the  jury  that  seamen  had  no 
right,  even  in  cases  of  extreme  peril,  to  sacrifice  the  lives  of  the  passengers  to 
preserve  their  own,  and  that,  when  it  became  necessary  that  some  person 
should  be  sacrificed  to  preserve  the  lives  of  the  company,  the  victims  should  v 
be  chosen  by  lot. 


v' 


72  THE   ELEMENTS   OF   CRIME.  (Ch.  2 

on  the  Sabbath  day,  or  shall  compel  his  apprentice,  servant,  or  slave 
to  labor  or  perform  other  services  than  customary  household  duties 
of  daily  necessity,  comfort,  or  charity,  shall  be  deemed  guilty  of  a 
misdemeanor,  etc.    Gould's  Dig.  p.  373,  c.  51,  art.  5,  §  1. 

From  an  examination  of  the  testimony  it  is  manifest  that  there  was 
no  evidence  whatever  conducing  to  prove  such  a  necessity  for  labor- 
ing on  the  Sabbath  as  is  contemplated  by  the  statute,  nor  of  such  ne- 
cessity as  is  contemplated  by  the  instructions  given  the  jury  at  the  in- 
stance of  GofT.  It  was  not  shown  that  he  even  tried  to  procure  a 
cradle,  and  from  poverty  or  any  other  cause  did  not  succeed.  He  was 
laboring  for  others  when  he  should  have  been  at  work  for  himself, 
and  "waited"  until  Saturday  night  to  get  a  cradle. 

The  husbandman  should  look  forward  to  the  ripening  of  his  grain 
as  an  event  which  must  happen,  and  should  make  such  timely  provi- 
sion for  the  harvest  as  not  to  violate  the  Sabbath.  This  is  a  duty  en- 
joined alike  upon  the  poor  and  the  rich. 

The  instructions  given  by  the  court  for  Goff,  if  correct,  were  ab- 
stract, and  under  the  circumstances  were  well  calculated  to  mislead 
the  jury. 

The  judgment  must  be  reversed,  and  the  cause  remanded,  with  in- 
structions to  grant  the  state  a  new  trial. 


Sec  1)  THE   CRIMINAL  INTENT.  73 

CHAPTER  III. 
THE  CRIMINAL  INTENT. 


SECTION  1.— GENERAL  PRINCIPLES. 


All  crimes  have  their  conception  in  a  corrupt  intent  and  have  their 
consummation  and  issuing  in  some  particular  fact,  which,  though  it 
be  not  the  fact  at  which  the  intention  of  the  malefactor  levelled,  yet 
the  law  giveth  him  no  advantage  of  the  error,  if  another  particular  en- 
sue of  as  high  a  nature. — Bacon's  Maxims,  Reg.  15. 


"The  full  definition  of  every  crime  contains,  expressly  or  by  im- 
plication, a  proposition  as  to  a  state  of  mind.  Therefore,  if  the  mental 
element  of  any  conduct  alleged  to  be  a  crime  is  proved  to  have  been 
absent  in  any  given  case,  the  crime  so  defined  is  not  committed,  or, 
again,  if  a  crime  is  fully  defined,  nothing  amounts  to  that  crime  which 
does  not  satisfy  that  definition.  *  *  *  The  mental  element  of 
most  crimes  is  marked  by  one  of  the  words  'maliciously,'  'fraudulent- 
ly,' 'negligently,'  or  'knowingly,'  but  it  is  the  general — I  might,  I 
think,  say,  the  invariable — practice  of  the  Legislature  to  leave  unex- 
pressed some  of  the  mental  elements  of  crime.  In  all  cases  whatever, 
competent  age,  sanity,  and  some  degree  of  freedom  from  some  kinds 
of  coercion  are  assumed  to  be  essential  to  criminality;  but  I  do  not 
believe  they  are  ever  introduced  into  any  statute  by  which  any  partic- 
ular crime  is  defined.  The  meaning  of  the  words  'malice,'  'negli- 
gence,' and  'fraud,'  in  relation  to  particular  crimes,  has  been  ascertain- 
ed by  numerous  cases.  Malice  means  one  thing  in  relation  to  murder, 
another  in  relation  to  the  malicious  mischief  act,  and  a  third  in  rela- 
tion to  libel ;   and  so  of  fraud  and  negligence.     *     *     * 

"With  regard  to  knowledge  of  fact,  the  law,  perhaps,  is  not  quite 
so  clear;  but  it  may,  I  think,  be  maintained  in  every  case  knowledge 
of  fact  is  to  some  extent  an  element  of  criminality  as  much  as  com- 
petent age  and  sanity.  To  take  an  extreme  illustration :  Can  any  one 
doubt  that  a  man  who,  though  he  might  be  perfectly  sane,  committed 
what  would  otherwise  be  a  crime  in  a  state  of  somnambulism,  would 
be  entitled  to  be  acquitted?  And  why  is  this?  Simply  because  he 
would  not  know  what  he  was  doing.  A  multitude  of  illustrations  of 
the  same  sort  might  be  given.     I  will  mention  one  or  two  glaring 


74  THE   CRIMINAL  INTENT.  (Ch.  3 

ones.  Levets'  Case,  1  Hale,  474,  decides  that  a  man  who,  making  a 
thrust  with  a  sword  at  a  place  where,  upon  reasonable  grounds  he 
supposed  a  burglar  to  be,  killed  a  person  who  was  not  a  burglar,  was 
held  not  to  be  a  felon,  though  he  might  be  (it  was  not  decided  that  he 
was)  guilty  of  killing  per  infortunium,  or  possibly  se  defendendo, 
which  then  involved  certain  forfeitures.  In  other  words,  he  was  in 
the  same  situation,  as  far  as  regarded  the  homicide,  as  if  he  had  killed 
a  burglar.  In  the  decision  of  the  judges  in  McNaghten's  Case,  10 
CI.  &  F.  200,  it  is  stated  that  if,  under  an  insane  delusion,  one  man 
killed  another,  and  if  the  delusion  was  such  that  it  would,  if  true, 
justify  or  excuse  the  killing,  the  homicide  would  be  justified  or  ex- 
cused. This  could  hardly  be  if  the  same  were  not  law  as  to  a  sane 
mistake.  A  bona  fide  claim  of  right  excuses  larceny,  and  many  of  the 
offenses  against  the  malicious  mischief  act.  Apart,  indeed,  from  the 
present  case,  I  think  it  may  be  laid  down  as  a  general  rule  that  an  al- 
leged offender  is  deemed  to  have  acted  under  that  state  of  facts  which 
he  in  good  faith,  and  on  reasonable  grounds  believed  to  exist  when  he 
did  the  act  alleged  to  be  an  offense. 

"Though  this  phrase  (non  est  reus,  nisi  mens  sit  rea)  is  in  com- 
mon use,  I  think  it  most  unfortunate,  and  not  only  likely  to  mislead, 
but  actually  misleading,  on  the  following  grounds:  It  naturally  sug- 
gests that,  apart  from  all  particular  definitions  of  crimes,  such  a  thing 
exists  as  a  mens  rea,  or  'guilty  mind,'  which  is  always  expressly  or  by 
implication  involved  in  every  definition.  This  is  obviously  not  the 
case,  for  _the  mental  elements  of  different  crimes  differ  widely.  'Mens 
rea'  means,  in  the~case"o7  murder,  malice  aforethought;  in  the  case  of 
theft,  an  intention  to  steal;  in  the  case  of  rape,  an  intention  to  have 
forcible  connection  with  a  woman  without  her  consent;  and  in  the 
case  of  receiving  stolen  goods,  knowledge  that  the  goods  were  stolen. 
In  some  cases,  it  denotes  mere  inattention.  For  instance,  in  the  case 
of  manslaughter  by  negligence,  it  may  mean  forgetting  to  notice  a 
signal.  It  appears  confusing  to  call  so  many  dissimilar  states  of  mind 
by  one  name.  It  seems  contradictory  indeed  to  describe  a  mere  ab- 
sence of  mind  as  a  mens  rea,  or  'guilty  mind.'  The  expression,  again, 
is  likely  to,  and  often  does,  mislead.  To  an  unlegal  mind  it  suggests 
that  by  the  law  of  England  no  act  is  a  crime  which  is  done  from  laud- 
able motives;  in  other  words,  that  immorality  is  essential  to  crime. 
It  will,  I  think,  be  found  that  much  of  the  discussion  of  the  law  of 
libel  in  Shipley's  Case,  4  Doug.  73,  21  St.  Tr.  847,  proceeds  upon  a 
inn:,-  or  1'       di  tixid  belief  to  this  effect.     It  is  a  topic  frequently  in- 

ted  upon  in  reference  to  political  offenses,  and  it  was  urged  in  a 
recent  notorious  case  of  abduction,  in  which  it  was  contended  that 
motives  said  to  be  laudable  were  an  excuse  for  the  abduction  of  a 
child  from  its  parents.  Like  most  legal  maxims,  the  maxim  on  'mens 
rea'  appears  to  me  to  be  too  short  and  antithetical  to  be  of  much  prac- 
,1  value.  It  is,  indeed,  more  like  the  title  of  a  treatise  than  a  practical 
rule.     I  have  tried  to  ascertain  its  origin,  but  have  not  succeeded  in 


Sec.  2)  DISTINCTION    BETWEEN    INTENT   AND    MOTIVE.  75 

doing  so.  It  is  not  one  of  the  'regulae  juris'  in  the  digests.  The  earli- 
est case  of  its  use  I  have  found  is  in  the  Leges  Henrici  Primi,  v.  28, 
in  which  it  is  said:  'Si  quis  per  coa^ctionem  abjurare  cogatur  quod  per 
multos  annos  quiete  tenuerit  non  in  jurante  set  cogente  perjurium 
erit.  Reum  non  facit  nisi  mens  rea.'1  In  Broom's  Maxims  the  ear- 
liest authority  cited  for  its  use  is  3  Inst.  c.  1,  fol.  10.  In  this  place 
it  is  contained  in  a  marginal  note,  which  says  that,  when  it  was  found 
that  some  of  Sir  John  Oldcastle's  adherents  took  part  in  an  insurrcc- 
ion  'pro  timore  mortis  et  quod  recesserunt  quam  cito  patuerant,'  the 
judges  held  that  this  was  to  be  adjudged  no  treason,  because  it  was 
for  fear  of  death.  Coke  adds:  'Et  actus  non  facit  reum  nisi  mens 
sit  rea.'  This  is  only  Coke's  own  remark,  and  not  part  of  the  judg- 
ment. Now  Coke's  scraps  of  Latin  in  this  and  the  following  chapters 
are  sometimes  contradictory.  Notwithstanding  the  passage  just  quot- 
ed, he  says  in  the  margin  of  his  remarks  on  opinions  delivered  in 
Parliament  by  Thyrning  and  others  in  the  21  R.  2 :  'Melius  est  omnia 
mala  pati  quam  malo  consentire'  (22-23),  which  would  show  that  Sir 
J.  Oldcastle's  associates  had  a  mens  rea,  or  'guilty  mind,'  though  they 
were  threatened  with  death,  and  thus  contradicts  the  passage  first  quot- 
ed. It  is  singular  that  in  each  of  these  instances  the  maxim  should  be 
used  in  connection  with  the  law  relating  to  coercion." 

Extract  from  the  opinion  of  Stephen,  J.,  in  Reg.  v.  Tolson,  23 
Q.  B.  Div.  168  (1889). 


SECTION  2.— DISTINCTION   BETWEEN  INTENT  AND  /' 

MOTIVE. 

SCHMIDT  v.  UNITED  STATES. 

(Circuit  Court  of  Appeals,  Ninth  Circuit,  1904.     133  Fed.  257,  66  C.  C.  A.  389.) 

Gilbert,  Circuit  Judge.2  The  plaintiff  in  error  was  indicted  and 
prosecuted  in  the  United  States  Circuit  Court  for  the  District  of 
Washington  upon  an  indictment  containing  ten  counts,  in  each  of 
which  he  was  charged  with  swearing  falsely  in  certain  naturalization 
proceedings  pending  in  the  superior  court  of  the  state  of  Washington 
for  Walla  Walla  county. 

Ejror  is  assigned  to  the  refusal  of  the  court  to  instruct  the  jury  I 
"that,   when  the  evidence  fails  to  show   any  motive  to  commit  the 

i  "The  original  source  is  S.  Augustinus  Sermones,  No.  ISO,  c.  2  (Migne  Patrol, 

vol.  38,  col.  974):^Reara  linguam  non  facit  nisi  mens  rea.'     This  passes  into 

the  Decretuin  C.  3,  C.  22,  qu.  2.  The  author  of  the  Leges  took  it  from  some 
intermediate  book  in  which  the  linguam  may  possibly  have  disappeared."  Pol- 
lock &  Maitland's  Hist.  Eng.  Law,  vol.  2,  p.  474,  note  5. 

2  Part  of  the  opinion  is  omitted.    . 


76  THE    CRIMINAL   INTENT.  (Ch.  3 

crime  charged  on  the  part  of  the  accused,  this  is  a  circumstance  in 
favor  of  his  innocence;  and  in  this  case,  if  the  jury  find  upon  care- 
ful examination  of  all  the  evidence  that  it  fails  to  show  any  motive 
on  the  part  of  the  accused  to  commit  the  crime  charged  against  him, 
then  this  is  a  circumstance  which  the  jury  ought  to  consider,  in  con- 
nection with  all  the  other  evidence  in  the  case,  in  making  up  their 
verdict." 

This  instruction  so  requested,  while  proper  in  some  casevJiad.  no 
rightful  application  to  the  evidence  in  the  case  before  the  court.  It 
was  clearly  proven  by  the  direct  testimony  of  witnesses,  and  it  was 
not  disputed,  that  the  plaintiff  in  error  went  to  these  aliens,  who  had 
not  been  in  the  United  States  the  requisite  time  to  entitle  them  to 
citizenship,  and  actively  induced  them  to  appear  before  the  court 
and  take  out  their  final  papers,  and  in  that  connection  falsely  testi- 
fied before  the  court  as  charged  in  the  indictment.  The  jury  may 
inquire  into  the  motive  of  a  defendant  when  it  is  necessary  to  resort 
to  it  in  arriving  at  the  ultimate  fact  that  it  was  he  who  committed 
the  crime  charged.  The  motive  then  becomes  an  aid  in  completing 
the  proof  of  the  commission  of  the  act;  and  in  such  a  case  it  is 
proper  to  charge  the  jury  that  the  absence  of  motive,  if  they  fail  to 
find  one,  may  be  taken  into  consideration  in  determining  the  question 
whether  the  crime  was  committed  by  the  accused  or  by  some  other. 
The  instruction  is  particularly  applicable  to  cases  where  the  proof 
consists  in  circumstantial  evidence.  In  such  a  case  it  may  be  con- 
trolling. People  v.  Fitzgerald,  156  N.  Y.  253,  50  N.  E.  846.  That 
the  plaintiff  in  error  did  falsely  testify  was  not  denied.  His  motive 
in  so  doing  was  not  disclosed,  and  it  was  not  necessary  that  it  should 
be.  While  the  prosecution  is  never  required  to  prove  a  motive  for 
the  crime,  it  is  always  permitted  to  do  so.  In  the  present  case  the 
proof  was  not  circumstantial,  but  was  direct,  and  was  undisputed. 
To  have  given  the  charge  requested  would  have  been  to  tell  the 
jury  that  they  were  at  liberty,  in  determining  whether  they  would 
give  credence  to  the  positive  and  uncontroverted  testimony  of  wit- 
nesses to  the  overt  act  of  the  plaintiff  in  error,  to  be  influenced  by 
the  fact  that  they  failed  to  find  a  motive  for  his  act.  Such  is  not  the 
law. 

The  judgment  of  the  District  Court  is  affirmed. 


' 


REX  v.  REGAN. 
(Central  Criminal  Court,  1S."0.    4  Cox,  C.  C.  $35.) 


The  prisoner  was  indicted  for  maliciously  aand  feloniously  setting 
fire  to  a  certain  building,  with  intent  to  injure  one  Joseph   Adams. 

Prom  the  evidence  it  appealed  that  tin-  prisoner  bad  given  notice 
of  other  fires,  and  had  claimed  the  reward  usually  paid  on  such  occa- 


Sec.  2)  DISTINCTION    BETWEEN    INTENT   AND    MOTIVE.  77 

sions  at  the  engine  station,  and  he  had  apparently  no  other  motive 
in  setting  fire  to  the  premises  in  question  than  the  expectation  of 
getting  such  reward.1 

Payne,  for  the  prisoner,  contended  before  -the  jury  that  if  they  be- 
lieved that  the  prisoner's  intent  was  not  to  injure  the  prosecutor,  but 
merely  to  obtain  the  reward  for  giving  the  earliest  information,  that 
he  could  not  be  convicted  upon  the  indictment. 

Erle,  J.  I  entirely  dissent  from  this  view  of  the  case.  If  the  pris- 
oner willfully  set  fire  to  the  premises,  the  jury  will  be  perfectly  justi- 
fied in  finding  that  his  intent  was  to  injure  the  person  whose  proper- 
ty they  were,  and  who  would  necessarily  be  injured  by  such  an  act, 
although  he  might  have  an  ulterior  object  of  obtaining  the  reward. 
There  have"  been  several  cases  recently  of  persons  administering 
poison  to  others  for  the  purpose  of  obtaining  the  money  for  which 
their  lives  were  insured,  but  no  one  ever  dreamed  that,  because  they 
were  actuated  by  such  a  motive,  they  would  be  entitled  to  an  acquittal 
when  indicted  for  administering  poison  with  intent  to  kill. 

The  prisoner  was  found  guilty.2 

REGINA  v.  SENIOR. 

(Court  for  Crown  Cases  Reserved,  1S9S.    19  Cox,  C.  C.  219.) 

This  case,  stated  by  Wills,  J.,  was  as  follows: 

The  prisoner  was  indicted  and  tried  before  me  on  the  24th  day  of 
November,  1898,  for  the  manslaughter  of  his  child,  an  infant  of  the 
age  of  nine  months. 

The  child  had  died  of  diarrhoea  and  pneumonia.  The  prisoner  had 
not  supplied  it  with  any  medical  aid  or  medicine,  though  aware  that  the 
case  was  of  great  gravity,  and  that  the  child  would  probably  die. 

The  medical  evidence  was  that  the  child's  life  would  certainly  have 
been  prolonged,  and  in  all  probability  saved,  if  medical  assistance  had 
been  procured. 

No  question  was  raised  as  to  the  prisoner's  ability  to  procure  and 
pay  for  medical  assistance,  and  it  was  shown  that  he  earned  about  35 
shillings  a  week. 

He  was  shown  to  have  been  a  good  and  kind  father  in  all  other 
respects,  and  he  bore  an  excellent  character  for  general  good  conduct. 
He  had  had  twelve  children,  of  whom  seven  were  dead,  and  he  had 
had  before  experiences  of  the  same  kind  as  those  relating  to  the  pres- 
ent inquiry,  for  the  ^question  he  put  to  the  inspector  of  police  was, 
"Except  in  regard  to  this  case,"  and  he  then  corrected  himself,  "Ex- 

i  Part  of  this  ease,  involving  a  question  of  evidence,  is  omitted. 
2  See.  also,  Walls  v.  State,  7  Blackf.  (Ind.)  572  (1S45). 

That  the  motive  for  the  act  done  was  a  good  one  is  likewise  immaterial. 
People  v.  Kirby,  2  Parker,  Cu.  R.  (N.  Y.)  28  (1823). 


78  THE   CRIMINAL   INTENT.  (Ch.  3 

cept  in  regard  to  these  cases,  have  you  ever  known  anything  against 
me?" 

The  prisoner  is  a  member  of  a  sect  called  the  "Peculiar  People," 
whose  religious  doctrines  as  to  the  treatment  of  sick  people  are  cer- 
tainly to  thp  ordinary  apprehension  remarkable.  They  base  them  up- 
on the  Epistle  of  James,  chapter  5,  verses  14  and  15:  "Is  any  sick 
amor.g  you?  Let  him  call  for  the  elders  of  the  church,  and  let  them 
pray  over  him,  annointing  him  with  oil  in  the  name  of  the  Lord.  And 
the  prayer  of  faith  shall  save  the  sick,  and  the  Lord  shall  raise  him 
up,  and  if  he  have  committed  sins  they  shall  be  forgiven  him."  They 
do  not  allege  that  medical  aid  is  here  expressly  forbidden,  but  say 
that  to  make  use  of  it  is  to  indicate  a  want  of  faith  in  the  Lord.1 

The  jury  found  the  prisoner  guilty,  adding  that  they  considered 
medical  aid  and  medicine  to  have  been  necessary  for  the  child,  but 
that  they  were  of  opinion  that  the  prisoner  had  done  all  that  he  could 
in  the  best  interests  of  the  child,  except  in  not  providing  medical  aid 
and  medicine. 

I  said  nothing  to  the  jury  as  to  whether  the  prisoner  was  acting 
bona  fide  and  according  to  his  conceptions  of  duty,  because  the  learn- 
ed counsel  -had  in  his  opening  speech  said  that  it  was  not  in  question 
that  he  was  so  doing. 

The  prisoner  was  not  represented  by  counsel,  and  I  had  not  the 
advantage  of  any  argument  on  his  behalf  as  to  the  meaning  of  "will- 
fuJl^Jifiglects"  in  St.  57  &  58  Vict.  c.  41,  and  I  therefore  reserved  the 
case  for  the  opinion  of  the  Court  for  Crown  Cases  Reserved. 

The  questions  for  the  opinion  of  the  court  are  whether  my  direc- 
tion was  right  in  law,  and,  if  so,  whether  there  was  evidence  upon 
which  the  jury  could  properly  convict  the  prisoner.  If  both  the  ques- 
tions are  answered  in  the  affirmative,  the  conviction  is  to  stand ;  if 
either  is  answered  in  the  negative,  the  conviction  is  to  be  quashed. 

The  prisoner  was  released  on  bail  pending  the  decision  of  this  court. 

H.  Sutton,  for  the  prisoner.  The  prisoner,  having  done  all  that  his 
conscience  permitted  him  to  do  for  the  child,  could  not  be  guilty  of 
neglect.  The  evidence  was  that  he  was  attentive,  and  that  he  had  pro- 
vided a  nurse  for  the  child,  and  everything  except  drugs  and  medical 
attendance.  These  he  did  not  provide  because  of  his  religious  be- 
lief. He  was  not  guilty  of  a  culpable  omission  of  duty  at  common 
law,  for  at  common  law  he  was  not  obliged  to  provide  medical  at- 
tendance or  drugs  for  his  child.  Reg.  v.  1  lines.  HO  C.  C.  Sessions 
.  B.,  at  page  312.  Nor  does  the  omission  to  pro- 
vide medical  attendance  constitute  culpable  neglect  at  common  law,  if 
the  omission  is  1>  E  a  religious  belief.     Keg.  v.  Wagstaffe,  10 

v.  Hurry,  76  C.  C.  Sessions  Papers,  63.    The 
er  was  noj  guilty  of  the  statutory  offense  oj  willfully  ne 
ing  his  child,  for,  although  St.  31  &  32  Vict.  c.  122,  §  ::;,  did  ma 

i  Pnrt  of  the  Btatemenl  is  omitted. 


vSec.  2)  DISTINCTION    BETWEEN    INTENT   AND   MOTIVE.  79 

an  offense  to  willfully  neglect  to  provide  medical  aid  for  a  child  to 
the  injury  of  its  health,  that  statute  was  repealed  by  St.  52  &  53  Vict, 
c.  44,  §  18.  The  words  "medical  aid"  are  omitted  from  that  statute, 
and  from  the  prevention  of  cruelty  to  children  act  of  1894  (St.  57  & 
58  Vict.  c.  41),  by  which  it  again  was  repealed.  In  Reg.  v.  Downes, 
33  L.  T.  Rep.  675,  1  Q.  B.  Div.  25,  a  conviction  was  upheld  because 
of  the  words  of  St.  31  &  32  Vict.  c.  122,  §  37  (4),  which  was  then 
in  force. 

Horace  Avory,  for  the  Crown,  was  not  called  -on. 

Lord  Russell,  C.  J.  In  this  case  we  have  to  deal  with  a  case  stated 
by  my  Brother  Wills,  on  the  trial  of  the  defendant  on  a  charge  fram- 
ed with  reference  to  St.  57  &  58  Vict.  c.  41.  The  first  question 
we  have  to  consider  is  whether  the  learned  judge  was  right  in  his  di- 
rection to  the  jury  as  to  what  constitutes  willful  neglect;  and  the 
second  question  is  whether  there  was  evidence  on  which  the  jury 
could  convict  the  defendant  of  willful  neglect.  Now  the  charge  is 
preferred  under  the  first  section,  which  provides  that  if  any  person 
who  has  the  custody,  charge,  or  care  of  any  child  under  the  age  of 
16  "wilfully"  (I  omit  the  words  which  have  no  bearing  on  the  point) 
"neglects"  such  child,  that  person  shall  be  guilty  of  a  misdemeanor. 
It  is  useful  to  refer  to  the  history  of  the  legislation  on  the  subject. 
By  St.  31  &  32  Vict.  c.  122,  §  37,  which  is  a  statute  dealing  with  the 
relief  of  the  poor,  it  was  enacted  that  any  parent  who  willfully  neg- 
lected to  provide  adequate  food,  clothing,  medical  aid,  or  lodging  for 
his  child,  being  in  his  custody,  under  the  age  of  14  years,  whereby  the 
health  of  such  child  was  seriously  injured,  was  guilty  of  an  offense, 
therefore  it  became  under  that  statute  the  duty  of  a  parent  to  provide 
medical  aid  for  his  children.  That  statute  was  followed  by  a  statute 
of  18S9,  with  which  it  is  not  necessary  to  deal.  It  is  important  to 
remember  that  the  statute  of  1868  was  passed  after  the  judgment  of 
Willes,  J.,  in  Reg.  v.  Wagstaffe,  10  Cox,  C.  C.  530 ;  Willes,  J.,  hav- 
ing given  judgment  in  January,  while  the  statute  is  dated  August.  We 
now  come  to  the  statute  of  1894,  and  there  is  a  great  difference  in 
the  wording  of  the  act,  for  "medical  aid"  is  dropped.  It  is  difficult  to 
believe  that  the  Legislature  was  taking  a  retrograde  step,  for  the  stat- 
ute shows  that  it  was  passed  in  consequence  of  increased  anxiety  for 
the  welfare  of  children.  In  the  case  we  are  now  considering  it  is 
not  disputed  that  the  child  was  in  a  dangerous  state,  to  the  knowledge 
of  the  parent.  It  is  not  disputed,  and  the  jury  have  found,  that  its 
life  would  have  been  saved  if  medical  assistance  had  been  given,  and 
that  the  parent  was  in  a  position  to  provide  medical  aid ;  further,  that 
the  parent  did  not  give  medical  aid,  and  that  he  did  not  because  he  be- 
lieved to  do  so  would  be  a  want  of  faith  in  the  methods  which  he 
believed  to  be  prescribed  by  the  Bible,  and  that  he  was  otherwise  an 
attentive  parent;  lastly,  that  the  child  died.  These  being  the  facts,  the 
learned  judge  charged  the  jury  as  follows:  "I  told  the  jury  that  they 
must  first  of  all  be  satisfied  that  the  death  of  the  child  had  been  caus- 


80  THE    CRIMINAL   INTENT.  (Ch.  3 

ed  or  accelerated  by  the  want  of  medical  assistance;  secondly,  that 
medical  aid  and  medicine  were  such  essential  things  for  the  child  that 
I  reasonably  careful  parents  in  general  would  have  provided  them;  and, 
khirdly,  that  the  prisoner's  means  would  have  enabled  him  to  do  so 
without  an  expenditure  such  as  could  not  be  reasonably  expected 
from  him."  Was  that  direction  substantially  right?  I  think  it  was. 
It  seems  to  me  to  be  the  same,  whether  you  take  the  words  separately 
or  conjoined.  The  words  are,  if  a  person  "wilfully  neglects."  It 
seems  to  me  very  clear  what  this  phrase  means.  "Wilfully"  means 
done  deliberately  and  not  by  inadvertence,  and  "neglect"  the  omission 
to  do  something  for  the  benefit  of  the  child — in  other  words,  intention- 
al failure  to  take  those  steps  which  the  experience  of  mankind  shows 
to  be  generally  necessary.  In  these  days  the  resources  of  medical 
science  are  within  the  reach  of  the  humblest  and  the  poorest.  The 
learned  counsel  has  argued  with  his  invariable  clearness  that  because 
the  father  was  an  affectionate  parent,  and  because  he  neglected  to  pro- 
vide nothing  for  the  child  except  that  which  its  condition  urgently  re- 
quired, that  it  was  impossible  to  say  that  he  was  guilty  of  willful  neg- 
lect. When  a  child  breaks  its  thigh  bone  and  an  operation  is  neces- 
sary, which  is  in  the  highest  degree  dangerous  while  the  child  is  in  a 
state  of  consciousness,  would  the  father  be  guilty  of  neglect  if  he  re- 
fused to  permit  the  administration  of  an  anaesthetic  drug?  What  if 
the  child  in  an  infantile  complaint  is  in  danger  of  suffocation,  and  it 
is  necessary  to  perform  tracheotomy,  would  it  be  willful  neglect  to  re- 
fuse to  permit  the  use  of  an  anaesthetic?  I  think  that  in  either  of 
these  cases  the  parent  would  properly  be  convicted.  I  dissent  entire- 
ly from  the  view  said  to  have  been  expressed  by  Piggot,  B.,  Reg.  v. 
Hines,  80  C.  C.  Sess.  Papers,  p.  312,  and  I  think  that  in  this  case  an 
indictment  for  gross  and  culpable  neglect  could  be  supported  at  com- 
mon law. 

Wills,  J.  This  is  a  case  of  a  class  which  so  frequently  comes  be- 
fore the  judges  that  I  thought  it  well  to  state  the  case  in  order  that 
an  authoritative  decision  might  be  delivered  on  the  point. 

Grantham,  J.     I  agree. 

Day,  Lawrfxce,  and  Wright,  JJ.,  concurred. 

Conviction  affirmed.2 

'-  Sic  :i1s< i.  bigamy  by  a  Mormon,  Reynolds  v.  U.  S..  08  U.  S.  14.".  25  L.  Ed. 
I'll  (1878);  beating  drum  in  city  in  performance  of  religious  exercises,  State 
v.  White,  01  N.  11.  IS,  5  Atl.  828  (1880). 


v.  fry :,■ 

Sec.  3)  CONSTRUCTIVE   INTENT.  81 

SECTION  3.— CONSTRUCTIVE  INTENT. 


ISHAM  v.  STATE. 
(Supreme  Court  of  Alabama,  1SG2.    38  Ala.  213.) 

The  indictment  in  this  case  contained  three  counts;  the  first  charg- 
ing that  the  prisoner,  who  was  a  slave,  the  property  of  Capt.  W.  F. 
Hanby,  "unlawfully  and  with  malice  aforethought  killed  George  M. 
Hagood,  by  shooting  him  with  a  gun";  the  second,  that  he  "unlaw- 
fully and  intentionally,  but  without  malice,  killed  George  M.  Hagood, 
a  white  person,"  etc.;  and  the  third,  that  he  "unlawfully,  but  without 
malice  or  the  intention  to  kill,  killed  George  M.  Hagood,  a  white 
person,"  etc.  The  circuit  court  sustained  a  demurrer  to  the  third 
count,  and  the  prisoner  pleaded  not  guilty  to  the  other  counts. 

The  prisoner  asked  the  court  to  charge  the  jury  as  follows :  "If 
the  jury  believe,  from  the  evidence  that  the  deceased  disguised  him- 
self, by  blacking  himself  and  the  manner  in  which  he  was  clothed, 
for  the  purpose  of  deceiving  the  prisoner  and  making  him  believe  that 
he  was  a  runaway  slave,  and  under  such  disguise  went  to  the  prison- 
er's house  on  his  master's  premises  at  an  unusual  hour  of  the  night, 
between  midnight  and  day,  and  there,  by  his  disguised  condition  and 
the  manner  in  which  he  acted,  deceived  the  prisoner,  and  that  the 
prisoner  in  truth  and  in  fact  believed  that  the  deceased  was  a  run- 
away negro  slave,  and  under  that  delusion  shot  and  killed  the  de- 
ceased, then  he  is  neither  guilty  of  murder,  nor  of  the  voluntary  man- 
slaughter of  a  white  person,  nor  of  the  involuntary  manslaughter  of 
a  white  person  in  the  commission  of  an  unlawful  act."  The  court 
refused  this  charge,  and  the  prisoner  excepted. 

The  verdict  of  the  jury  was,  "Guilty  of  voluntary  manslaughter, 
as  charged  in  the  second  count  in  the  indictment." 

A.  J.  Walker,  C.  J.1     It  is  not  indispensable  to  the  constitution 

of  a  crime  that  the  prisoner  should  commit  the  very  act  intended. 

Certainly  there  must  concur  a  wrongful  intent  and  a  wrongful  act. 

But  he  who,  aiming  to  accomplish  one  wrongful  act,  fails  in  that, 

but  perpetrates  another,  is  not  excused.    The  wrongful  intent  and  the 

wrongful  act  are  said  to  coalesce  and  make  the  crime.    Bishop  on  Cr. 

■Xaw,  §  254.     Numerous  illustrations  of  this  doctrine  are  to  be  found 

^_0n_jjie  books.     Where  there  is  a  design  to  commit  a  felony,  and  a 

t      homicide  ensues,  against  or  beyond  the  intent  of  the  party,  he  is 

guilty  of  murder;   but,  if  the  intent  went  no  further  than  to  commit 

a  bare  trespass,  it  will  be  manslaughter.     1  East's  Cr.  Law,  255.     If 

A.  gives  a  pdlsonelT'a^Trjie^'T^  intending  to  poison  B.,  and  B.,  igno- 

i  Part  of  this  case,  relating  to  another  point,  is  omitted. 
Mik.Cb.L.— G 


82  THE   CRIMINAL  INTENT.  (Ch.  3 

rant  of  it,  gives  it  to  a  child,  who  takes  it  and  dies,  A.  is  guilty  of 
the  murder  of  the  child,  but  B.  is  guiltless.  And  so,  if  one,  out  of 
malice  at  A.,  shoots  at  him,  but  misses  him^and  kills  B.,  it  is  no  less 
-murder  thajL  if  he  killed  the  person  intended.  Wharton's  Cr.  Law, 
§  965.  These  illustrations  will  suffice  to  show  that,  to  the  conviction 
of  a  slave  for  the  homicide  of  a  white  man,  it  is  not  indispensable 
that  there  should  exist  an  intent  to  kill  a  white  person,  or  even  a 
knowledge  that  the  deceased  was  a  white  man.  Indeed,  one  may  be 
guilty  of  involuntary  manslaughter,  where  there  was  no  intent  to 
kill.  A  homicide,  resulting  from  an  attempt  to  commit  any  unlawful 
act,  would  be  manslaughter;  and  therefore,  if  a  slave  should  shoot 
unlawfully  at  a  beast,  and  by  chance  kill  a  white  person,  he  would 
be  guilty  of  the  involuntary  manslaughter  of  a  white  person  in  the 
commission  of  an  unlawful  act,  although  he  might  be  ignorant  of 
the  proximity  of  the  person  slain.  Surely  the  crime  could  not  be 
less,  if  the  purpose  was  to  kill  a  negro  instead  of  a  beast;  and  yet 
such  is  the  conclusion  to  which  the  argument  for  the  prisoner  would 
lead.  The  statute  does  not  make  a  knowledge  that  the  deceased  was 
a  white  person  an  ingredient  of  the  offense,  and  we  cannot  decide 
that  it  is.  There  being  a  criminal  intent,  the  defendant  is  guilty,  not- 
withstanding he  was  mistaken  as  to  the  person  upon  whom  his  un- 
lawful purpose  fell.  See  the  authorities  collected  in  1  Bishop  on  Cr. 
Law,  §  247,  and  on  the  Attorney  General's  brief. 

The  fifteenth  of  Lord  Bacon's  maxims  is  as  follows :  "In  crim- 
inalibus,  sufficit  generalis  malitia  intentionis,  cum  facto  paris  gradus." 
3  Bacon's  Works,  238 ;  Broom's  Legal  Maxims,  238.  In  reference 
to  this  maxim  the  learned  author  says:  "All  crimes  have  their  con- 
ception in  a  corrupt  intent,  and  have  their  consummation  and  issuing 
in  some  particular  fact,  which,  though  it  be  not  the  fact  at  which 
the  intention  of  the  malefactor  leveled,  yet  the  law  giveth  him  no 
advantage  of  that  error,  if  another  particular  ensue  of  as  high  a 
nature."  We  do  not  find  this  maxim  so  recognized  by  subsequent 
writers  on  the  criminal  law,  and  by  those  adjudging  criminal  causes, 
as  to  induce  us  without  hesitation  to  adopt  it  as  a  correct  exposition. 
The  explanation  of  the  maxim  would  seem  to  imply  that,  to  consti- 
tute the  crime,  it  is  only  necessary  that  the  act  should  be  of  as  high 
a  nature  as  the  intent,  and  not  to  imply  a  denial  that  the  crime  might 
take  its  complexion  from  an  act  of  criminality  higher  than  the  intent. 
If  this  be  the  construction,  it  would  not  aid  the  accused.  If  the 
maxim  import  that  there  must  be  a  perfect  correspondence  between 
the  intent  and  the  act,  it  cannot  lie  harmonized  with  principles  too 
well  establi  lied  to  be  controverted.  A  homicide,  not  intended,  but 
committed,  in  the  perpetration  of  burglary  or  arson,  would  be  mur- 
der, notwithstanding  the  offenses  intended  are  not,  in  our  law,  of 
as  high  a  grade  or  subject  to  as  severe  penalties  as  murder.  We 
shall  not  engage  in  any  speculation  as  to  the  true  import  and  opera- 
tion, or  the  authority,  of  the  maxim,  hut  shall  content  ourselves  with 


SeC.  3)  CONSTRUCTIVE   INTENT.  83 

announcing  the  conclusion  that  wc  cannot  be  led  by  it  to  oppose  the 
proposition  which  we  now  proceed  to  state,  as  follows: 

A  slave,  who  kills  a  white  man,  intending  to  kill  a  negro,  is  guilty 
of  a  criminal  homicide  in  the  degree  in  which  he  would  have  been 
guilty  if  the  person  slain  had  been  a  negro,  and  he  is  subject  to  the 
punishment  prescribed  for  the  commission  of  the  offense  upon  a 
white  person.  The  maxim,  in_its  litej^l  translation,  only_  requires 
that  the_act_should  be__of  equal  grade  with  the  intent;  not  that  the 
same  punishment  should  be  incident  to  the  thing  done  as  to  the  thing 
intended.  Crimes  may  be  of  the  same  degree,  and  yet  subjected  by 
law,  founded  in  public  policy,  to  different  punishments.  The  man- 
slaughter of  a  white  man  by  a  slave  and  the  manslaughter  of  a  negro 
by  a  slave  belong  to  the  same  degree  of  homicide,  and  yet  are  sub- 
jected to  variant  punishments.  So,  also,  manslaughter  committed 
with  a  bowie  knife  and  manslaughter  committed  with  a  different 
weapon  are  offenses  of  the  same  degree,  and  yet  there  is  a  distinc- 
tion made  in  the  punishments  prescribed.  Numerous  other  illustrations 
might  be  drawn  from  our  criminal  law.  In  all  those  cases,  as  in 
this,  the  difference  is  not  in  the  degree,  but  in  the  punishment;  and 
the  difference  in  the  punishment  is  the  result  of  some  incident  to  the 
crime,  which  from  public  policy  the  law  makes  an  aggravation.  If, 
therefore,  we  take  the  maxim  in  its  literal  import,  we  find  nothing 
inconsistent  wTith  our  position. 

In  the  case  of  Bob  v.  State,  29  Ala.,  20,  it  was  argued  that  the 
prisoner,  a  slave,  when  committing  an  assault  and  battery  upon  an- 
other slave,  by  accident  struck  and  killed  the  deceased,  who  was  a 
white  person.  In  reference  to  that  aspect  of  the  case,  this  court  said : 
"We  hold  that  if  a  slave,  in  the  attempt  unjustifiably  to  commit  an 
assault,  or  assault  and  battery,  on  another  slave,  kill  a  white  person 
by  misadventure,  he  is  guilty  of  involuntary  manslaughter,  under  sec- 
tion 3312  of  the  Code  of  1852."  This  is  an  express  adjudication 
of  the  point,  made  in  this  case,  that  a  slave  cannot  be  guilty  of  man- 
slaughter of  a  white  person,  when  the  intent  was  aimed  at  a  negro. 
If  one,  intending  to  beat  a  negro  and  unintentionally  killing  a  white 
person,  is  guilty  of  the  homicide  of  a  white  person,  a  fortiori  is  a 
slave  thus  guilty,  when,  intending  to  kill  a  negro,  he  by  mistake  kills 
a  white  person. 

We  are  content  to  abide  by  the  decision  in  Henry's  Case,  33  Ala. 
389.  Upon  the  principle  of  that  decision,  the  accused  might  be  con- 
victed of  the  involuntary  manslaughter  of  a  white  person,  under  a 
count  for  the  voluntary  manslaughter  of  a  white  person.  There  was, 
therefore,  no  error  in  the  charge  given  by  the  court. 

The  judgment  of  the  court  below  is  affirmed,  and  its  sentence  must 
be  executed,  as  therein  ordered.2 

2  See,  also,  Rex  v.  Pedlev,  Cald.  218  (1782) ;  State  v.  Wagner,  78  Mo.  644. 
47  Am.  Rep.  131  (1883) ;   Reddick  v.  Commonwealth  (Ky.)  33  S.  W.  416  (1S95). 


84 


THI   CRIMINAL  INTENT. 


(Ch.3 


REGINA  v.  PACKARD. 

(Central  Criminal  Court,  1841.    1  Car.  &  M.  236.) 

Manslaughter. 

The  facts  of  the  case  were  as  follows:  The  prisoner,  John  Rich- 
ard Packard,  was  a  chemist  in  Drury  Lane;  and  on  the  5th  of  No- 
vember, 1841,  an  officer  of  the  sheriff  of  Middlesex  named  Ham- 
blyn,  having  a  warrant  against  his  goods,  executed  it  about  12  at 
noon,  and  left  the  deceased,  Michael  Aungier,  in  possession  for  him. 
Aungier,  according  to  the  evidence  of  Hamblyn,  was  a  man  in  good 
health,  about  60  years  of  age,  and  was  quite  sober  at  the  time  he 
was  left  on  the  premises  about  1  o'clock  in  the  day.  The  deceased 
remained  in  the  kitchen  of  the  house,  and  was  quite  sober  up  to  9 
o'clock  in  the  evening.  At  that  time  John  Richard  Packard  went  into 
the  kitchen,  and  the  deceased  asked  him  for  a  glass  of  gin.  He  re- 
plied, "Very  well;  you  shall  have  it;"  but  instead  of  a  glass  of  gin, 
gave  him  a  glass  of  rum  and  water,  which  he  drank.  About  half- 
past  9  J.  R.  Packard  asked  him  to  go  into  the  parlor. 

iL-further  appeared  that  the  remainder  of  the  evening  was  spent 
by  Aungier,  John  Packard,  Joseph  Packard,  and  Kennett  in  eating 
and  drinking;  that  at  half-past  1  o'clock  Aungier  was  very""aTunk, 
and  unable  to  help  himself;  that  he  was  given  more  liquor  by  the 
prisoners,  and  then  carried  by  them  down  the  stairs  and  put  into  the 
cabriolet,  two  of  the  defendants  riding  on  the  box.  The  cabman,  by 
direction  of  the  prisoners,  drove  to  Covent  Garden,  and,  arriving 
there,  the  prisoners  left  the  cabriolet  without  taking  any  notice  of 
deceased,  and  ordered  the  cabman  to  drive  to  No.  18  Chancery  Lane. 
The  cabman  drove  to  his  destination,  and,  after  fruitless  efforts  to 
arouse  the  inmates,  drove  to  Bow  street,  took  deceased  from  the 
cab  and  placed  him  on  a  doorstep,  and  waited  for  a  policeman,  who, 
coming  up  a  few  minutes  later,  pronounced  Aungier  dead.1 

Parke,  B.  The  first  question  will  be  whether  the  prisoners,  or 
any  of  them,  put  the  deceased  into  the  cabriolet;  and  upon  this  I 
think  nothing  need  be  said.  If  you  are  of  opinion  that  they  did,  then 
the  questions  will  be:  First,  whether  they,  or  any  of  them,  were 
guilty  of  administering  or  procuring  the  deceased  to  take  large  quan- 
tities of  liquor  for  an  unlawful  purpose,  or  whether,  when  he  had 
tal.in  it,  they  put  him  into  the  cabriolet  for  an  unlawful  purpose. 
If  you  think  that  the  three  prisoners,  or  one  of  them,  made  him 
excessively  drunk  to  enable  the  prisoner,  John  Richard  Packard,  to 
prevent  the  completion  of  the  execution,  or  if  you  are  satisfied  that 
the  object  of  the  prisoners,  or  any  of  them,  was  otherwise  unlawful, 
and  thai  the  death  of  the  deceased  was  caused  in  carrying  their  un- 
lawful  object   into   effect,   they   must   be    found   guilty.     The   simple 


i  Part  <>r  tiiis  case  is  omli ted. 


SeC.  3)  CONSTRUCTIVE    INTENT.  85 

fact  of  persons  getting  together  to  drink,  or  one  pressing  another 
to  do  so,  is  not  an  unlawful  act,  or,  if  death  ensue,  an  offense  that 
can  be  construed  into  manslaughter ;  and  if  what  took  place  in  the 
present  instance  was  really  and  solely  for  the  purpose  of  good  fel- 
lowship, for  making  merry,  or  causing  the  misfortunes  of  the  elder 
Packard  to  be  forgotten,  though  the  act  was  attended  with  death, 
this  will  not  be  a  case  of  manslaughter.  Upon  the  first  question  I 
have  stated  it  will  be  essential  to  make  out  on  this  indictment  that 
the  prisoners  administered  the  liquor  with  the  intention  of  making 
the  deceased  drunk  and  then  getting  him  out  of  the  house;  and  if 
that  be  doubtful,  still,  if  you  think  that,  when  he  was  drunk,  they 
removed  him  into  the  cabriolet  with  the  intention  of  preventing  his 
returning,  and  death  was  the  result  of  such  removal,  the  act  was  un- 
lawful, and  the  case  will  be  a  case  of  manslaughter.  If,  however, 
you  think  they  all  got  drunk  together,  and  that  afterwards  he  was 
put  into  the  cabriolet  with  an  intention  that  he  should  take  a  drive 
only,  that  was  not  an  unlawful  object,  such  as  I  have  described,  and 
the  prisoners  will  be  entitled  to  an  acquittal ;  or  if  you  entertain  a 
conscientious  doubt  as  to  their  real  object,  you  ought  also,  on  that 
ground,  to  acquit  them.  [His  lordship  then  stated  the  circumstances 
of  the  case  and  proceeded.]  The  first  point  to  be  decided  is  whether 
the  acts  of  the  prisoners,  whatever  may  be  their  character,  were  the 
cause  of  the  death  of  the  deceased.  As  to  that,  you  are  to  look  to 
the  evidence  of  the  surgeons,  and  see  whether  those  acts  caused  the 
death  of  the  deceased  to  take  place  when  it  did;  that  is  to  say,. 
whether  those  acts  accelerated  his  death.  Now,  it  seems  to  result 
from  what  the  surgeons  say — and  assuming  the  facts  in  evidence 
to  be  correct — that  the  acts  of  the  prisoners  did  accelerate  the  death, 
and  if  you  are  of  that  opinion  it  will  justify  you  in  inquiring  into' 
those  acts.  One  observation  as  to  this  is  that  one  of  the  prisoners 
might  have  had  a  motive  in  getting  the  sheriff's  officer  out  of  pos- 
session voluntarily  for  the  purpose  of  disposing  of  the  goods  he  had 
seized,  and  that  in  furtherance  of  that  motive  the  original  object  of 
all  was  to  make  him  drunk,  and  so  to  get  rid  of  him.  But,  sup- 
posing you  cannot  clearly  trace  that  intention,  still  you  will  have  to 
inquire  with  what  view  they  put  him  into  the  cabriolet,  left  him  in 
Covent  Garden,  and  gave  a  false  address,  to  which  they  directed  he 
should  be  driven.  It  is  true  that  there  is  no  direct  proof  that  any 
one  pressed  him  to  drink;  but,  if  the  liquor  was  placed  before 
him  with  the  illegal  object  I  have  mentioned,  that  would  be  enough 
without  such  direct  proof.  You  will  therefore  consider  whether  all 
three,  or  any,  of  the  prisoners  had  this  illegal  object;  whether  they 
made  the  deceased  drunk  with  a  view  of  getting  rid  of  him  from 
the  house,  and  then,  with  the  same  intention,  put  him  into  the 
cabriolet;  or  whether,  having  made  him  drunk  without  any  such 
original  object,  when  he  was  drunk  they  put  him  into  the  cabriolet 
for  the  purpose  of  so  getting  rid  of  him;    and  whether  you  are  sat- 


86  THE    CRIMINAL   INTENT.  (Ch.  3 

isfied  that  the  acts  of  the  prisoners,  or  any  one  of  them,  done  with  such 
illegal  object,  contributed  to  his  death. 

The  jury  retired  to  consider  their  verdict,  and  on  their  return 
into  court  asked  a  question  of  his  lordship,  in  answer  to  which  they 
were  told  that  if  the  prisoners,  when  the  deceased  was  drunk,  drove 
him  about  in  the  cab,  in  order  to  keep  him  out  of  possession,  and 
by  so  doing  accelerated  his  death,  it  would  be  manslaughter.  They 
then  immediately  returned  a  verdict  of 

Guilty — and  the  prisoners  were  respectively  sentenced  to  be  im- 
prisoned in  Newgate  for  one  calendar  month. 


REGINA  v.  FRANKLIN. 

(Sussex  Assizes,  1S83.     15  Cox,  C.  C.   163.) 

Charles  Harris  Franklin  was  indicted,  before  Field,  J.,  at  Lewes, 
for  the  manslaughter  of  Craven  Patrick  Trenchard. 

The  facts  were  as  follows: 

On  the  morning  of  the  25th  day  of  July,  1882,  the  deceased  was 
bathing  in  the  sea  from  the  west  pier,  at  Brighton,  and  swimming 
in  the  deep  water  around  it.  The  prisoner  took  up  a  good-sized  box 
from  the  refreshment  stall  on  the  pier  and  wantonly  threw  it  into 
the  sea.  Unfortunately  the  box  struck  the  deceased,  C.  P.  Trenchard, 
who  was  at  that  moment  swimming  underneath,  and  so  caused  his 
death. 

Gore,  for  the  prosecution,  urged  that  it  would,  apart  from  the 
question  of  negligence,  be  sufficient  to  constitute  the  offense  of 
manslaughter;  that  the  act  done  by  the  prisoner  was  an  unlawful 
act,  which  the  facts  clearly  showed  it  to  be;  and  cited  the  case  of 
Rex  v.  Fenton,  1  Lewin's  Cr.  Cas.  179.  This  case  is  referred  to 
in  1  Russell  on  Crimes,  638 :  "If  death  ensues  in  consequence  of 
a  wrongful  act,  which  the  party  who  commits  it  can  neither  justify 
nor  excuse,  it  is  manslaughter.  An  indictment  charged  that  there 
was  a  scaffolding  in  a  certain  coal  mine,  and  that  the  prisoners,  by 
throwing  large  stones  down  the  mine,  broke  the  scaffolding,  and 
that  in  consequence  of  the  scaffolding  being  so  broken  a  corf  in 
which  the  deceased  was  descending  the  mine  struck  against  a  beam 
on  which  the  scaffolding  had  been  supported,  and  by  such  striking 
the  corf  was  overturned,  and  the  deceased  precipitated  into  the 
mine  and  killed.  Tindal,  C.  J.,  said:  'If  death  ensues  as  the  con- 
sequence of  a  wrongful  act,  which  the  party  who  commits  it  can 
neither  justify  nor  excuse,  it  is  not  accidental  death,  but  manslaughter. 
If  the  wrongful  act  was  done  under  circumstances  which  show  an 
intent  to  kill  or  do  any  serious  injury  in  the  particular  case  or  any 
general  malice,  the  offen  e  becomes  dial  of  murder.  In  the  present 
nee  the  ad   wa    one  of  mere  wantonness  and  sport;    but  still 


Sec.  3)  CONSTRUCTIVE   INTENT.  87 

the  act  was  wrongful.  It  was  a  trespass.  The  only  question,  there- 
fore, is  whether  the  death  of  the  party  is  to  be  fairly  and  reasonably 
considered  as  a  consequence  of  such  wrongful  act.  If  it  followed 
from  such  wrongful  act,  as  an  effect  from  a  cause,  the  offense  is 
manslaughter;  if  it  is  altogether  unconnected  with  it,  it  is  accidental 
death.'  " 

Field,  J.  This  is  a  question  of  great  importance;  for,  if  I  must 
follow  the  ruling  of  the  very  learned  judge  in  Rex  v.  Fenton,  ubi 
supra,  it  will  be  unnecessary  to  go  into  the  question  whether  the 
prisoner  was  guilty  of  negligence.  I  will  consult  my  Brother 
Mathew  upon  the  point. 

Fieed,  J.,  after  a  short  interval,  returned  into  court  and  said:  I 
am  of  opinion  that  the  case  must  go  to  the  jury  upon  the  broad  ground 
of  negligence,  and  not  upon  the  narrow  ground  proposed  by  the 
learned  counsel,  because  it  seems  to  me — and  I  may  say  that  ^  in 
this  view  my  Brother  Mathew  agrees — that  the  mere  fact  of  a  civil 
wrong  committed  by  one  person  against  another  ought  not  to  be 
used  as  an  incident  which  is  a  necessary  step  in  a  criminal  case.  I 
have  a  great  abhorrence  of  constructive  crime.  We  do  not  think  the 
case  cited  by  the  counsel  for  the  prosecution  is  binding  upon  us 
in  the  facts  of  this  case,  and  therefore  the  civil  wrong  against,  the 
refreshment-stall  keeper  is  immaterial  to  this  charge  of  manslaughter. 
I  do  not  think  that  the  facts  of  this  case  bring  it  clearly  within  the 
principle  laid  down  by  Tindal,  C.  J.,  in  Rex  v.  Fenton.  If  I  thought 
this  case  was  in  principle  like  that  case,  I  would,  if  requested,  state 
a  case  for  the  opinion  of  the  Court  of  Criminal  Appeal.  But  I  do 
not  think  so. 

It  was  not  disputed  that  the  prisoner  threw  the  box  over  the  pier, 
that  the  box  fell  upon  the  boy,  and  the  death  of  the  boy  was  caused 
by  the  box  falling  upon  him. 

Gill,  for  the  prisoner,  relied  upon  the  point  that  there  was  not 
proved  such  negligence  as  was  criminal  negligence  on  the  part  of 
the  prisoner. 

Field,  J.,  in  summing  up  the  case  to  the  jury,  went  carefully  through 
the  evidence,  pointing  out  how  the  facts  as  admitted  and  proved  af- 
fected the  prisoner  upon  the  legal  question  as  he  had  explained  to 
them. 

The  jury  returned  a  verdict  of  guilty  of  manslaughter. 

The  prisoner  was  sentenced  to  two  months'  imprisonment 


rgJt<*      ./J4>,ll/b<tt=// 


88  THE   CRIMINAL  INTENT.  (Ch.  3 

—COMMONWEALTH  v.   ADAMS. 
(Supreme  Judicial  Court  of  Massachusetts,  1S73.     114  Mass.  323.) 

Complaint  for_assault  and  battery. 

At  the  trial  in  the  superior  court,  before  Bacon,  J.,  it  appeared 
that  the  defendant  was  driving  in  a  sleigh  down  Beacon  street,  and 
was  approaching  the  intersection  of  Charles  street,  when  a  team  oc- 
cupied the  crossing.  The  defendant  endeavored  to  pass  the  team  while 
driving  at  a  rate  prohibited  by  an  ordinance  of  the  city  of  Boston. 
In  so  doing  he  ran  against  and  knocked  down  a  boy  who  was  crossing 
Beacon  street.  No  special  intent  on  the  part  of  the  defendant  to 
injure  the  boy  was  shown.  The  defendant  had  pleaded  guilty  to  a 
complaint  for  fast  driving,  in  violation  of  the  city  ordinance.  The 
commonwealth  asked  for  a  verdict,  upon  the  ground  that  the  intent 
to  violate  the  city  ordinance  supplied  the  intent  necessary  to  sustain 
the  charge  of  assault  and  battery.  The  court  so  ruled,  and  thereupon 
the  defendant  submitted  to  a  verdict  of  guilty,  and  the  judge,  at 
the  defendant's  request,  reported  the  case  for  the  determination  of 
this  court. 

Endicott,  J.  We  are  of  opinion  that  the  ruling  in  this  case  cannot 
be  sustained.  It  is  true  that  one  in  the  pursuit  of  an  unlawful  act 
may  sometimes  be  punished  for  another  act  done  without  design  and 
by  mistake,  if  the  act  done  was  one  for  which  he  could  have  been 
^jj punished  if  done  willfully.  But  the  act,  to  be  unlawful  in  this  sense, 
v  must  be  an  act  bad  in  itself,  and  done  with  an  evil  intent;  and  the 
law  has  always  made  this  distinction:  That  if  the  act  the  party  was 
doing  was  merely  malum  prohibitum,  he  shall  not  be  punishable  for 
the  act  arising  from  misfortune  or  mistake;  but  if  malum  in  se,  it 
is  otherwise.  1  Hale,  P.  C.  39;  Foster,  C.  L.  259.  Acts  mala  in  se 
include,  in  addition  to  felonies,  all  breaches  of  public  order,  injuries 
to  person  or  property,  outrages  upon  public  decency  or  good  morals, 
and  breaches  of  official  duty,  when  done  willfully  or  corruptly.  Acts 
mala  prohibita  include  any  matter  forbidden  or  commanded  by  stat- 
ute, but  not  otherwise  wrong.  3  Greenl.  Ev.  §  1.  It  is  within  the 
last  class  that  the  city  ordinance  of  Boston  falls,  prohibiting  driving 
more  than  six  nTiTes  an  hour  in  the  streets. 

.  to  prove  the  violation  of  such  an  ordinance,  it  is  not  nec- 
essary to  show  that  it  was  done  willfully  or  corruptly.  The  ordinance 
de<  lares  a  certain  thing  to  be  illegal.  It  therefore  becomes  illegal 
to  do  it,  without  a  wrong  motive  charged  or  necessary  to  be  prov- 
ed;  and  the  court  is  bound  to  administer  the  penalty,  although  th 
is  an  entire  want  of  de  ign.  Rex  v.  Sainsbury,  1  T.  R.  461,  157.  it 
was  held  in  Commonwealth  v.  Worcester,  3  Pick.  (Mass.)  in?,  thai 
proof  only  of  the  fact  that  the  party  was  driving  faster  than  the  or- 
dinance allowed  was  sufficient  for  conviction.  See  Commonwealth 
v.  Farren,  9  Allen  (Mass.)   189;   Commonwealth  v.  Waite,  11  Allen 


Sec.  3)  CONSTRUCTIVE   INTENT.  89 

(Mass.)  264,  87  Am.  Dec.  711.  It  is  therefore  immaterial  whether 
a  party  violates  the  ordinance  willfully  or  not.  The  offense  con- 
sists, not  in  the  intent  with  which  the  act  is  done,  but  in  doing  the 
act  prohibited,  but  not  otherwise  wrong.  It  is  obvious,  therefore, 
that  the  violation  of  the  ordinance  does  not  in  itself  supply  the  intent 
to^~do  another  act  which  requires  a. criminal  intent  to  be  proved.  The 
learned  judge  erred  in  ruling  that  the  intent  to  violate  the  ordinance 
in  itself  supplied  the  intent  to  sustain  the  charge  of  assault  and 
battery.  The  verdict  must  therefore  be  set  aside,  and  a  new  trial 
granted.1 


REGINA  v.  LATIMER. 
(Court  for  Crown  Cases  Reserved,  1886.    16  Cox,  C.  C.  70.) 

Case  stated  by  the  learned  Recorder  for  the  borough  of  Devon- 
port  as  follows : 

The  prisoner  was  tried  at  the  April  Quarter  Sessions  for  the  bor- 
ough of  Devonport  on  the  10th  day  of  April,  1886. 

The  prisoner  was  indicted  for  unlawfully  and  maliciously  wound- 
ing Ellen  Rolston.  There  was  a  second  count  charging  him  with  a 
common  assault. 

The  evidence  showed  that  the  prosecutrix,  Ellen  Rolston,  kept  a 
public  house  in  Devonport;  that  on  Sunday,  the  14th  day  of  Feb- 
ruary, 1886,  the  prisoner,  who  was  a  soldier,  and  a  man  named 
Horace  Chappie,  were  in  the  public  house,  and  a  quarrel  took  place, 
and  eventually  the  prisoner  was  knocked  down  by  the  man,  Horace 
Chappie.  The  prisoner  subsequently  went  out  into  a  yard  at  the 
back  of  the  house.  In  about  five  minutes  the  prisoner  came  back 
hastily  through  the  room  in  which  Chappie  was  still  sitting,  having 
in  his  hand  his  belt  which  he  had  taken  off.  As  the  prisoner  passed 
he  aimed  a  blow  with  his  belt  at  the  said  Horace  Chappie,  and  struck 
him  slightly.  The  belt  bounded  off  and  struck  the  prosecutrix,  who 
was  standing  talking  to  the  said  Horace  Chappie,  in  the  face,  cutting 
her  face  open  and  wounding  her  severely. 

At  the  close  of  the  case  the  learned  Recorder  left  these  questions 
to  the  jury:  (1)  Was  the  blow  struck  at  Chappie  in  self-defense  to 
get  through  the  room,  or  unlawfully  and  maliciously?  (2)  Did  the 
blow  so  struck  in  fact  wound  Ellen  Rolston?  (3)  Was  the  striking 
of  Ellen  Rolston  purely  accidental,  or  was  it  such  a  consequence  as 
the  prisoner  should  have  expected  to  follow  from  the  blow  he  aimed 
at  Chappie? 

The  jury  found:  (1)  That  the  blow  was  unlawful  and  malicious. 
(2)  That  the  blow  did  in  fact  wound  Ellen  Rolston.      (3)  That  the 

i  See.  for  a  learned  and  exhaustive  opinion  in  accord,  the  opinion  of  Hoke. 
J.,  in  State  v.  Horton,  139  N.  C.  5S8,  51  S.  E.  945,  1  L.  R.  A.  (N.  S.)  991,  111 
Am.  St.  Rep.  S18  (1005). 

\^ 

'• 


90  THE   CBIMINAL  INTENT.  (Ch.  3 

striking  of  Ellen  Rolston  was  purely  accidental,  and  not  such  a  con- 
sequence of  the  blow  as  the  prisoner  ought  to  have  expected. 

Upon  these  findings  the  learned  Recorder  directed  a  verdict  of 
guilty  to  be  entered  to  the  first  count,  but  respited  judgment,  and 
admitted  the  prisoner  to  bail,  to  come  up  for  judgment  at  the  next 
sessions. 

The  question  for  the  consideration  of  the  court  was  whelher^_up- 
on  the  facts  and  the  findings  of  the  jury,  the  prisoner  was  rightly 
convicted  of  the  offense  for  which  he  was  indicted. 

By  St.  24  &  25  Vict.  c.  100,  §  20,  it  is  enacted  that : 

"Whosoever  shall  unlawfully  and  maliciously  wound  or  inflict  any 
grievous  bodily  harm  upon  any  other  person,  either  with  or  without 
any  weapon  or  instrument,  shall  be  guilty  of  misdemeanor." 

Croft,  for  the  prisoner.  The  findings  of  the  jury  amount  to  a 
verdict  of  not  guilty,  for,  though  they  found  that  the  blow  was 
unlawful  and  malicious,  and  did  in  fact  wound  the  prosecutrix,  they 
negatived  those  findings  by  the  finding  that  the  blow  was  accidental. 
In  Reg.  v.  Pembliton,  12  Cox,  C.  C.  607,  30  L.  T.  Rep.  (N.  S.)  405, 
L.  R.  2  Cr.  Cas.  Res.  119,  it  was  held  that  a  jury,  by  finding  that  a 
stone  had  been  thrown  by  the  prisoner,  intending  to  strike  a  person 
with  whom  he  had  been  fighting,  and  not  intending  to  break  a  window 
as  he  had  done,  had  negatived  the  existence  of  malice,  either  actual 
or  constructive,  and  a  conviction  for  malicious  injury  to  property 
was  upon  that  ground  quashed.  [Manisty,  J.  Suppose  here  the 
prisoner  had  killed  Ellen  Rolston,  would  not  he  have  been  guilty  of 
manslaughter?]  Yes;  but  in  this  case  the  indictment  is  under  a  stat- 
ute which  requires  that  the  blow  should  have  been  given  maliciously, 
and  intention  to  wound  the  particular  person  is  therefore  necessary. 
[Lord  Esher.  The  indictment  does  not  charge  any  specific  intent. 
It  charges  that  he  did  it  unlawfully.  He  was  doing  a  criminal  and 
unlawful  act,  which  resulted  in  a  wounding  of  Ellen  Rolston.  Was 
not  that  an  unlawful  wounding?]  No;  in  the  case  cited  the  words 
in  the  statute  were  the  same,  and  it  was  held  not  to  be  an  unlawful 
injury.  [Field,  J.  There  the  indictment  was  that  the  prisoner  un- 
lawfully and  maliciously  injured  the  window  of  A.,  and  the  jury 
found  that  he  intended  to  wound  B.,  and  no  doubt  the  court  would 
hold  that  the  evidence  did  not  support  the  indictment.]  In  Reg.  v. 
Faulkner,  13  Cox,  C.  C.  550,  a  sailor  entered  a  part  of  a  vessel  for 
the  purpose  of  stealing  rum,  and  accidentally  fired  the  vessel,  but 
he  was  nevertheless  held  not  guilty  of  arson.  [Manisty,  J-  1"  that 
case  there  was  no  evidence  at  all  of  malice.]  I  submit  that  the  un- 
lawfulness of  the  act  was  sufficient  evidence  of  malice  there.  In 
McPherson  v.  Daniels,  10  B.  &  C.  203,  2  M.  &  R.  251,  "maliciously" 
has  been  defined  as  the  doing  a  wrongful  act  willfully.  [Lord  Cole- 
ridge,  C.  J.  Is  not  this  case  governed  by  the  decision  in  Reg.  v. 
Hunt,  1  Moo.  C.  C.  93?]  No;  for  that  case  is  inconsistent  with 
the  later  case  of  Reg.  v.  Hewlett,  I    I'.  &   !■'.  91,  where  it  was  held 


Sec.  3)  CONSTRUCTIVE   INTENT.  91 

that  where  a  person  strikes  A.,  and  B.,  interposing,  receives  the  blow, 
a  conviction  for  wounding  B.  with  intent  to  do  grievous  bodily  harm 
cannot  be  sustained.  I  submit  that  this  case  is  governed  by  the  de- 
cision in  Reg.  v.  Pembliton,  and  that,  the  jury  having  negatived  the 
existence  of  malice,  the  prisoner  is  entitled  to  an  acquittal. 

Helpman,  for  the  prosecution,  was  not  called  upon. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  sustained.  In  the  first  place,  it  is  common  knowledge  that  if  a  per- 
son has  a  malicious  intent  towards  one  person,  and  in  carrying  into 
effect  that  malicious  intent  he  injures  another  man,  he  is  guilty  of 
what  the  law  considers  malice  against  the  person  so  injured,  because 
he  is  guilty  of  general  malice,  and  is  guilty  if  the  result  of  his  un- 
lawful act  be  to  injure  a  particular  person.  That  would  be  the  law 
if  the  case  were  res  integra;  but  it  is  not  res  integra,  because  in 
Reg.  v.  Hunt  a  man,  in  attempting  to  injure  A.,  stabbed  the  wrong 
man.  There,  in  point  of  fact,  he  had  no  more  intention  of  injuring 
B.  than  a  man  has  an  intent  to  injure  a  particular  person  who  fires 
down  a  street  where  a  number  of  persons  are  collected,  and  injures  a 
person  he  never  heard  of  before.  But  he  had  an  intent  todo.  an  un- 
lawful  act,  and  in  carrying  out  that  intent  he  did  injure  a  pprsnn  ; 
and  the  law  says  that,  und^r_such^r^umstanc^s<_^L.jiLan  is  guiitv_nf_ 
maliciously  wounding  the  person  actually  wounded.  That  would  be 
The"  ordinary  state  of  the  law  if  it  had  not  been  for  the  case  of  Reg. 
v.  Pembliton.  But  I  observe  that,  in  such  an  indictment,  as  in  that 
case,  the  words  of  the  statute  carry  the  case  against  the  prisoner 
more  clearly  still,  because,  by  St.  24  &  25  Vict.  c.  100,  §  18,  it  is 
enacted  that  "whosoever  shall  unlawfully  and  maliciously  by  any 
means  whatsoever  wound  *  *  *  any  person  *  *  *  with  intent 
*  *  *  to  maim,  disfigure,  or  disable  any  person  *  *  *  shall  be 
guilty  of  felony";  and  then  section  20  enacts  that  "whosoever  shall 
unlawfully  and  maliciously  wound  *  *  *  any  other  person  shall 
be  guilty  of  a  misdemeanor,"  and  be  liable  to~"certain  punishments. 
Therefore  the  language  of  the  eighteenth  and  twentieth  sections  are 
perfectly  different;  and  it  must  be  remembered  that  this  is  a  convic- 
tion for  an  offense  under  the  twentieth  section.  Now,  the  Master 
of  the  Rolls  has  pointed  out  that  these  very  sections  are  in  substitu- 
tion for  and  correction  of  the  earlier  statute  (St.  9  Geo.  IV,  c.  31), 
where  it  was  necessary  that  the  act  should  have  been  done  with  intent 
to  maim,  disfigure,  or  disable  such  person,  showing  that  the  intent 
must  have  been  to  injure  the  person  actually  injured.  Those  words 
are  left  out  in  the  later  statute,  and  the  words  are  "wound  any  other 
person."  I  cannot  see  that  there  could  be  any  question,  but  for  the 
case  of  Reg.  v.  Pembliton.  Now,  I  think  that  that  case  was  properly 
decided,  but  upon  a  ground  which  renders  it  clearly  distinguishable 
from  the  present  case ;  that  is  to  say,  the  statute  which  was  under 
discussion  in  Reg.  v.  Pembliton  makes  an  unlawful  injury  to  prop- 
erty punishable  in  a  certain  way.     In  that  case  the  jury  and  the  facts 


92  THE    CRIMINAL   INTENT.  (Gl.  3 

expressly  negatived  that  there  was  any  intent  to  injure  any  property 
at  all ;  and  the  court  held  that,  in  a  statute  which  created  it  an  offense 
to  injure  property,  there  must  be  an  intention  to  injure  property  in 
order  to  support  an  indictment  under  that  statute.  But  for  that 
case  Mr.  Croft  is  out  of  court,  and  I  therefore  think  that  this  con- 
viction should  be  sustained.1 


SECTION  4.— SPECIFIC  INTENT. 


REX  v.  DUFFIN. 

(Court  for  Crown  Cases  Reserved,  1818.     Russ.  &  R.  SG5.) 

The  prisoners  were  tried  before  Mr.  Baron  Wood,  at  the  Surrey 
spring  assizes,  in  the  year  1818,  on  an  indictment  containing  three 
counts. 

The  first  count  charged  the  prisoner  with  willfully,  maliciously,  and 
unlawfully  assaulting  John  Sharp,  and  with  a  sharp  instrument  cut- 
ting him  upon  his  forehead  with  intent  to  murder  him,  contrary  to 
the  form  of  the  statute.  The  second  count  charged  the  intent  to 
be  to  disable  the  said  John  Sharp;  and  the  third  count  charged  the 
intent  to  be  to  do  the  said  John  Sharp  some  grievous  bodily  harm. 

The  facts  proved  were  that  the  prisoners  went  by  night  into  the 
burial  ground  of  Lambeth  Church  with  intent  to  dig  up  graves  and 
to  take  dead  bodies.  They  went  to  the  bonehouse,  broke  open  the 
door,  and  took  out  two  shovels.  The  prisoner,  Marshall,  then  began 
digging  up  a  grave,  and  had  dug  down  to  a  coffin,  during  which  time 
Duffin  was  standing  at  the  end  of  the  grave.  The  sexton,  who  with 
his  son  and  another  person,  of  the  name  of  John  Sharp,  as  his  assist- 
ant, had  been  concealed  in  the  churchyard  with  arms  to  watch  the 
prisoners,  whom  they  knew,  came  forward  to  the  head  of  the  grave, 
and  said:  "You  scoundrels,  don't  you  want  some  assistance  there?" 
The  prisoner  Duffin  said:  "We  are  took  to."  Marshall  got  out  of 
the  grave  and  struck  at  the  sexton  with  the  shovel,  but  missed  him. 
The  sexton  then  said:  "Will,  don't  you  know  me?"  The  prisoner 
Marshall  said:  "I  know  nobody."  The  sexton  replied:  "Surrender, 
or  I'll  shoot  you."  Marshall  then  struck  a  second  blow,  which  the 
m  parried  <>tf  with  his  fowling  piece.  The  sexton  then  struck 
Marshal]  with  his  fowling  piece;  and  Marshall  was  again  attempting 
to  strike,  but  the  sexton  called  out  for  assistance.  The  sexton's  son 
up,  and  fired  a  pistol  over  Marshall's  head.  Marshall  then  sur- 
rendered.    Whilst   Marshall   was  struggling   with   the   sexton,   Sharp, 

i  Concurring  opinions  of  ECsher,  M.  EL,  Bowen,  L.  J.,  and  Field  and  Manisty, 
jj.,  are  omitted 


Sec.  4)  SPECIFIC   INTENT.  93 

who  was  very  near  him,  and  who  had  not  spoken,  but  had  gone  with 
the  sexton  for  the  purpose  of  apprehending  anybody  they  should  find 
disturbing  the  graves,  received  a  blow  from  a  sabre,  which  fell  on 
his  forehead.  This  cut  was  not  very  deep,  nor  in  any  wise  danger- 
ous, but  bled  very  much.  The  blow  from  the  saber  was  given  by  the 
prisoner  Duffin,  who  attempted  to  strike  Sharp  a  second  time,  but 
was  knocked  down  by  Sharp,  and  secured. 

Curwood,  for  the  prisoners,  contended  that  what  the  prisoners  had 
done  was  solely  with  a  view  to  obstruct,  resist,  or  prevent  their  own 
apprehension,  and,  as  the  statute  had  expressly  provided  for  that  case, 
the  indictment  ought  to  Have  been  framed  accordingly.  He  also  con- 
tended that  the  statute  applied  only  to  cases  of  lawful  apprehension ; 
and  here  there  was  no  lawful  ground  to  warrant  the  apprehension  of 
the  prisoners,  as  the  taking  of  dead  bodies  was  not  a  felony,  nor  a 
breach  of  the  peace,  but  merely  a  trespass. 

Heath,  for  the  Crown,  contended  that  there  was  an  intention  on 
the  part  of  the  prisoners  to  do  some  grievous  bodily  harm  to  the  pros- 
ecutor, independent  of  any  resistance  to  their  own  apprehension. 

The  learned  judge  left  that  point  to  the  Jury,  who  found  that  the 
acts  done  by  the  prisoners  were  done  with  intent  to  obstruct,  resist, 
and  prevent  their  apprehension,  and  for  no  other  purpose.  The  ques- 
tion of  law  the  learned  judge  reserved  for  the  opinion  of  the  judges. 

In  Easter  term,  1818,  the  judges  met,  and  considered  this  case, 
and  held  the  conviction  wrong.  The  judges  were  of  opinion  that 
this  case  could  not  be  within  St.  43  Geo.  Ill,  c.  58,  unless  the  appre- 
hension of  the  prisoners  would  have  been  lawful,  and  if  the  cutting, 
etc.,  was  to  prevent  a  lawful  apprehension,  it  should  have  been  so 
stated,  that  being  one  of  the  intents  mentioned  in  the  act.  The  in- 
tent laid  in  the  indictment  had  been  expressly  negatived  by  the  jury, 
and  therefore  the  conviction  could  not  be  supported.1 


REX  v.  HOLT. 

(Shrewsbury  Assizes,   1836.     7  Car.   &  P.  518.) 

Shooting.  The  first  count  of  the  indictment  against  the  prisoner 
was  for  feloniously,  maliciously,  and  unlawfully  shooting  "at  one 
John  Hill,"  on  the  23d  of  March,  at  Drayton  in  Hales,  with  intent 
to  murder  "the  said  John  Hill" ;  second  count,  for  the  like,  with  in- 
tent to  maim  him ;  third,  with  intent  to  disfigure  him ;  fourth,  with 
intent  to  disable  him ;  fifth,  with  the  intent  to  do  him  some  grievous 
bodily  harm.  The  sixth,  seventh,  eighth,  ninth,  and  tenth  counts 
charged  the  shooting  to  have  been  "at  the  Rev.  James  Lee,"  with  in- 

i  See,  also,  Ogletree  v.  State,  28  Ala.  693  (1856) ;  Roberts  v.  People.  19  Micb. 
401  (1870) ;  U.  S.  v.  Buzzo,  18  Wall.  (U.  S.)  125,  21  L.  Ed.  812  (1873).  Cf. 
Kex  v.  Williams,  1  Moo.  107  (1S25). 


94  THE   CRIMINAL   INTENT.  (Ch.  3 

tent  to  murder  "the  said  Rev.  James  Lee,"  and  with  intent  to  maim 
him,  etc.,  as  in  the  former  counts.1 

LittlEdalE,  J.  (in  summing  up).  If  this  had  been  a  case  of  mur- 
der, and  the  prisoner,  intending  to  murder  one  person,  had  by  mis- 
take murdered  another,  he  would  be  equally  liable  to  be  found  guilty. 
The  question,  however,  may  be  different  on  the  construction  of  this 
;  act  of  Parliament.  There  is  no  doubt  that  the  prisoner  shot  at  Mr. 
Hill,  and  that,  if  death  had  ensued,  the  offense  would  have  amounted 
to  murder ;  and  then  it  will  be  for  you  to  say  whether  the  prisoner  in- 
tended to  do  Mr.  Hill  some  grievous  bodily  harm.  It  certainly  ap- 
pears that  he  did  not  so  intend  in  point  of  fact.  However,  the  law  in- 
fers that  a  party  intends  to  do  that  which  is  the  immediate  and  necessa- 
ry effect  of  the  act  which  he  commits. 

The  Foreman  of  the  Jury:  We  find  him  guilty  of  shooting  at  Mr. 
Hill,  with  intent  to  do  Mr.  Lee  some  grievous  bodily  harm. 

Littledale,  J.  There  is  no  count  for  that.  Do  you  find  him  guilty 
of  shooting  at  Mr.  Lee? 

The  Foreman  of  the  Jury:  No,  my  Lord;  he  fired  at  Mr.  Hill 
intending  to  fire  at  Mr.  Lee. 

LittlEdalE,  J.  Do  you  find  that  he  intended  to  do  harm  to  Mr. 
Hill? 

The  Foreman  of  the  Jury:  We  find  that  he  did  not  intend  to  do 
any  harm  to  Mr.  Hill. 

LittledalE,  J.     A  verdict  of  not  guilty  must  be  recorded. 

Verdict — Not  guilty.2 


REGINA  v.  DODDRIDGE. 
(Devon  Assizes,  I860-    8  Cox,  C.  C.  335.) 

Prisoners  were  indicted  for  night  poaching,  and  for  assaulting  the 
keepers. 

Karslake  &  Young,  for  the  prosecution. 

Carter,  for  the  prisoners. 

It  was  proved  that  prisoners  were  seen  by  the  keepers  on  the  land 
of  the  prosecutor,  at  midnight,  armed  with  guns,  near  a  preserve  of 
pheasants,  and  shots  were  heard.  On  seeing  the  keepers  the  prison- 
ers made  off  through  a  plantation  into  an  adjoining  highway,  where 
they  sat  down  under  a  tree.  The  keepers  then  came  up  to  them,  when 
the  prisoners  assaulted  and  severely  wounded  them. 

In  answer  to  a  question  by  the  learned  judge,  the  keepers  said 
that  they  had  not  followed  the  prisoners  into  the  highway  with  an 
intention  to  arrest  them. 

i  Part  "f  this  <"i^c  is  omitted. 

cord:    Reg.  v.  Ryan,  2  Moo.  &  R.  218  (1889).    Cf.  Reg.  v.  Stopford,  11 
I     c.  848  (1870);   Scot!  v.  State,  49  Ark.   156,   I  B.  W.  750  (1886). 


Sec.  4)  SPECIFIC   INTENT.  95 

Channell,  B.  This  will  not  sustain  the  charge  of  assaulting.  The 
assault  must  be  committed  at  the  time  when  the  keepers  are  attempt- 
ing to  arrest  the  prisoners.  Here  they  distinctly  swear  that  they 
had  no  intention  to  arrest  the  prisoners  when  they  came  up  to  them 
in  the  public  road.    These  counts  cannot  be  sustained. 

On  the  trial  of  another  indictment  against  the  same  prisoners,  be- 
fore Martin,  B.,  for  wounding  with  intent,  etc. 

Karslake  contended  that  evidence  of  a  common  intent  to  poach 
would  sustain  the  charge  of  a  joint  unlawful  wounding,  so  as  to  make 
the  act  of  some  of  them  the  act  of  all. 

Carter,  contra. 

Martin,  B.  I  quite  agree  with  my  Brother  Channeli,  that  proof 
of  a  common  intent  to  poach  is  no  evidence  whatever  of  a  common 
intent  to  wound. 

The  jury  acquitted  the  prisoners. 


REGINA  v.  PEMBLITON. 

(Court  of  Criminal  Appeal,  1874.     12  Cox,  C.  C.  607.) 

Lord  Coleridge,  C.  J.1  I  am  of  opinion  that  this  conviction  must 
be  quashed.  The  facts  of  the  case  are  these:  The  prisoner  and 
some  other  persons  who  had  been  drinking  in  a  public  house  were 
turned  out  of  it  at  about  11  p.  m.  for  being  disorderly,  and  they  then 
began  to  fight  in  the  street  near  the  prosecutor's  window.  The  pris- 
oner separated  himself  from  the  others,  and  went  to  the  other  side 
of  the  street,  and  picked  up  a  stone,  and  threw  it  at  the  persons  he 
had  been  fighting  with.  The  stone  passed  over  their  heads,  and  broke 
a  large  plate  glass  window  in  the  prosecutor's  house,  doing  damage 
to  an  amount  exceeding  £5.  The  jury  found  that  the  prisoner  threw 
the  stone  at  the  people  he  had  been  fighting  with,  intending  to  strike 
one  or  more  of  them  with  it,  but  not  intending  to  break  the  window. 
The  question  is  whether,  under  an  indictment  for  unlawfully  and  ma- 
liciously committing  an  injury  to  the  window  in  the  house  of  the  pros-  j 
ecutor,  the  proof  of  these  facts  alone,  coupled  with  the  finding  of  the ' 
jury,  will  do?  Now  I  think  that  is  not  enough.  The  indictment  is 
framed  under  St.  24  &  25  Vict.  c.  97,  §  51.  The  act  is  an  act  relating 
to  malicious  injuries  to  property,  and  section  51  enacts  that  whoso- 
ever shall  unlawfully  and  maliciously  commit  any  damage,  etc.,  to  or 
upon  any  real  or  personal  property  whatsoever  of  a  public  or  a  pri- 
vate nature,  for  which  no  punishment  is  hereinbefore  provided,  to  an 
amount  exceeding  £5,  shall  be  guilty  of  a  misdemeanor.  There  is  also 
the  fifty-eighth  section,  which  deserves  attention:  "Every  punish- 
ment and  forfeiture  by  this  act  imposed  on  any  person  maliciously 

i  The  opinion  only  is  printed. 


96  THE   CRIMINAL  INTENT.  (Ch.  3 

committing  any  offense,  whether  the  same  be  punishable  upon  indict- 
ment or  upon  summary  conviction,  shall  equally  apply  and  be  en- 
forced, whether  the  offense  shall  be  committed  from  malice  conceived 
against  the  owner  of  the  property  in  respect  of  which  it  shall  be  com- 
mitted, or  otherwise."  It  seems  to  me,  on  both  these  sections,  that 
what  was  intended  to  be  provided  against  by  the  act  is  the  willfully 
doing  an  unlawful  act,  and  that  the  act  must  be  willfully  and  inten- 
tionally done  on  the  part  of  the  person  doing  it  to  render  him  liable 
to  be  convicted.  Without  saying  that,  upon  these  facts,  if  the  jury 
had  found  that  the  prisoner  had  been  guilty  of  throwing  the  stone 
recklessly,  knowing  that  there  was  a  window  near  which  it  might 
probably  hit,  I  should  have  been  disposed  to  interfere  with  the  convic- 
tion, yet  as  they  have  found  that  he  threw  the  stone  at  the  people  he 
had  been  fighting  with,  intending  to  strike  them,  and  not  intending 
to  break  the  window,  I  think  the  conviction  must  be  quashed.  I  do 
not  intend  to  throw  any  doubt  on  the  cases  which  have  been  cited,  and 
which  show  what  is  sufficient  to  constitute  malice  in  the  case  of  mur- 
der. They  rest  upon  the  principles  of  the  common  law,  and  have  no 
application  to  a  statutory  offense  created  by  an  act  in  which  the  words 
are  carefully  studied. 

Blackburn,  J.  I  am  of  the  same  opinion,  and  I  quite  agree  that 
it  is  not  necessary  to  consider  what  constitutes  willful  malice  afore- 
thought to  bring  a  case  within  the  common-law  crime  of  murder, 
when  we  are  construing  this  statute,  which  says  that  whosoever  shall 
unlawfully  and  maliciously  commit  any  damage  to  or  upon  any  real 
or  personal  property  to  an  amount  exceeding  £5  shall  be  guilty  of  a 
misdemeanor.  A  person  may  be  said  to  act  maliciously  when  he  will- 
fully does  an  unlawful  act  without  lawful  excuse.  The  question  here 
is.  can  the  prisoner  be  said,  when  he  not  only  threw  the  stone  unlaw- 
fully, but  broke  the  window  unintentionally,  to  have  unlawfully  and 
maliciously  broken  the  window?  I  think  that  there  was  evidence  on 
which  the  jury  might  have  found  that  he  unlawfully  and  maliciously 
broke  the  window,  if  they  had  found  that  the  prisoner  was  aware  that 
the  natural  and  probable  consequence  of  his  throwing  the  stone  was 
that  it  might  break  the  glass  window,  on  the  principle  that  a  man 
must  be  taken  to  intend  what  is  the  natural  and  probable  consequence 
of  his  acts.  But  the  jury  have  not  found  that  the  prisoner  threw 
the  stone,  knowing  that,  on  the  other  side  of  the  men  he  was  throw- 
at,  there  was  a  glass  window,  and  that  he  was  reckless  as  to 
whether  he  did  or  did  not  break  the  window.  On  the  contrary,  they 
have  found  that  he  did  not  intend  to  break  the  window.  I  think,  there- 
fore, that  the  conviction  must  be  quashed. 

Picott,  B.    I  am  of  the  same  opinion. 

I.'  SH.  J.     I  also  think-  that   on  this  finding  of  the  jury  we  have  no 

alternative  but  to  hold  that  the  conviction  must  be  quashed.  The 
word  "maliciou  ly"  means  an  acl  done  either  actually  or  constructive- 
ly with  a  malicious  intention.     The  jury  might  have  found  that  he 


Tin  u^A         v  v^  tt^ 

?> '     Tie  A^i  y ^n^t  V ^*  Uk- 
5  •   unv^w^o  </  A1^ 


Mik.Cb.L.— 7 


r 


Sec.  5)  INTENT   IN    STATUTORY    CRIMES.  97 

did  intend  actually  to  break  the  window  or  constructively  to  do  so,  as 
that  he  knew  that  the  stone  might  probably  break  it  when  he  threw  it. 
But  they  have  not  so  found. 

Cleasby,  B.,  concurred. 

Conviction  quashed. 


SECTION  5.— INTENT  IN   STATUTORY  CRIMES. 




REGINA  v.  PRINCE. 

Hasps    RosprvPrt.    187H.      13    Cnx.    fi.    O.    138.1 


(Court  for  Crown  Cases  Reserved,  1875.     13  Cox,  C.  C.  138.) 

Case  reserved  for  the  opinion  of  the  Court  for  the  Consideration 
of  Crown  Cases  Reserved  by  Denman,  J. 

At  the  Assizes  for  Surrey,  held  at  Kingston-on-Thames  on  the  24th 
March  last,  Henry  Prince  was  tried  before  me  upon  the  charge  of 
having  unlawfuly  taken  one  Annie  Phillips,  an  unmarried  girl,  be- 
ing under  the  age  of  16  years,  out  of  the  possession  and  against  the 
will  of  her  father.  The  indictment  was  framed  under  St.  24  &  25 
Vict.  c.  100,  §  55. 

He  was  found  guilty,  but  judgment  was  respited  in  order  that  the 
opinion  of  the  Court  for  Crown  Cases  Reserved  might  be  taken  upon 
the  following  case: 

All  the  facts  necessary  to  support  a  conviction  existed,  and  were 
found  by  the  jury  to  have  existed,  unless  the  following  facts  consti- 
tute a  defense:  The  girl,  Annie  Phillips,  though  proved  by  her  fa- 
ther to  be  14  years  old  on  the  6th  April  following,  looked  very  much 
older  than  16;  and  the  jury  found  upon  reasonable  evidence  that  be- 
fore, the  defendant  took  her  away  she  had  told  him  that  she  was 
18,  and  that  the  defendant  bona  fide  believed  that  statement,  and  that 
such  belief  was  reasonable. 

If  the  court  is  of  opinion  that  under  these  circumstances  a  convic- 
tion was  right,  the  defendant  is  to  appear  for  judgment  at  the  next 
Assizes  for  Surrey ;  otherwise  the  conviction  is  to  be  quashed.  See 
R.  v.  Robins.  1  C.  &  K.  456 ;   R.  v.  Olifier,  10  Cox,  C.  C.  402. 

No  counsel  was  instructed  to  argue  on  behalf  of  the  prisoner. 

The  case  came  on  in  the  court  below  on  24th  April,  and  was  di- 
rected to  be  argued  before  all  the 'judges.1 

Bramwell,  B.,  delivered  the  following  judgment,  to  which  the 
Lord  Chief  Baron  Kelly,  Cleasby,  B.,  Grove,  J.,  Pollock,  B.,  and 
Amphlett,  B.,  assented: 

Thequestion  in  the  case  depends  on  the  construction  of  the  statute 

i  Argument  of  counsel,  concurring  opinions  of  Blackburn,  .T..  assented  to 
by  Cockburn,  C.  J.,  and  Mellor,   Lush,  Quain,  Archibald,  Field,   and   Lindley, 
JJ.,  and  of  Denman,  J.,  and  dissenting  opinion  of  Brett,  J.,  are  omitted. 
Mik.Cu.L.— 7 


98  THE    CRIMINAL   INTENT.  (Ch.  3 

under  which  the  prisoner  is  indicted.     That  enacts  that  "whosoever 
shall  unlawfully  take  any  unmarried  girl  under  the  age  of  sixteen  out 
of  the  possession  and  against  the  will  of  her  father,  or  mother,  or  any 
other  person  having  the  lawful  care  or  charge  of  her,  shall  be  guilty 
of  a  misdemeanor."     Now  the  word  "unlawfully"  means  "not  law- 
fully,"  "otherwise  than  lawfully,"   "without  lawful   cause" — such   as 
would  exist,  for  instance,  on  a  taking  by  a  police  officer  on  a  charge 
of  felony,  or  a  taking  by  a  father  of  his  child  from  her  school.    The 
statute,  therefore,  may  be   read  thus:    "Whosoever  shall  take,   etc., 
without  lawful  cause."    Now  the  prisoner  had  no  such  cause,  and  con- 
sequently, except  in  so  far  as  it  helps  the  construction  of  the  statute, 
the  word  "unlawfully"  may,  in  the  present  case,  be  left  out ;   and  then 
the  question  is,  has  the  prisoner  taken  an  unmarried  girl  under  the  age 
of  16  out  the  possession  of  and  against  the  will  of  her  father?    In  fact 
he  has ;   but  it  is  said  not  within  the  meaning  of  the  statute,  and  that 
that  must  be  read  as  though  the  word  "knowingly"  or  some  equiva- 
lent word  was  in,  and  the  reason  given  is  that  as  a  rule  the  mens  rea 
is  necessary  to  make  any  act  a  crime  or  offense,  and  that  if  the  facts 
necessary  to  constitute  an  offense  are  not  known  to  the  alleged  of- 
fender there  can  be  no  mens  rea.    I  have  used  the  word  "knowingly," 
but  it  will  perhaps  be  said  that  here  the  prisoner  not  only  did  not  do 
the  act  knowingly,  but  knew,  as  he  would  have  said  or  believed,  that 
the  fact  was  otherwise  than  such  as  would  have  made  his  act  a  crime ; 
that  here  the  prisoner  did  not  say  to  himself,  "I  do  not  know  how  the 
fact  is,  whether  she  is  under  16  or  not,  and  will  take  the  chance,"  but 
acted  on  the  reasonable  belief  that  she  was  over  16  and  that  though, 
if  he  had  done  what  he  did,  knowing  or  believing  neither  way,  but 
hazarding  it,  there  would  be  a  mens  rea,  there  is  not  one  when  he 
believes  he  knows  that  she  is  over  16.    It  is  impossible  to  suppose  that 
a  person  taking  a  girl  out  of  her  father's  possession  against  his  will 
is  guilty  of  no  offense  within  the  statute  unless  he,  the  taker,  knows 
she  is  under  16 — that  he  would  not  be  guilty  if  the  jury  were  of  opin- 
ion he  knew  neither  one  way  nor  the  other.     Let  it  be,  then,  that  the 
question  is  whether  he  is  guilty  where  he  knows,  as  he  thinks,  that  she 
is  over  16.    This  introduces  the  necessity  for  reading  the  statute  with 
some  strange  words  introduced,  as  thus:    "Whosoever  shall  take  any 
unmarried  girl,  being  under  the  age  of  16,  and  not  believing  her  to 
1)-  over  the  age  of  16,  out  of  the  possession,"  etc.     Those  words  are 
not  there,  and  the  question  is  whether  we  arc  bound  to  construe  the 
statute  as  though  they  were,  on  account  of  the  rule  that  the  mens  rea 
is  necessary  to  make  an  act  a  crime.     I  am  of  opinion  that  we  are  not, 
nor  as   thou  1    "l.miw  in-ly"   was  tlinr,   and    fur   Hie    Follow- 

ing reasons:  The  act  forbidden  is  wrong  in  itself,  if  without  lawful 
cause.  I  do  not  say  illegal,  but  wrong.  1  have  not  lost  sight  of  this: 
that,  though  the  statute  probably  principally  aims  at  seduction  for 
carnal  purposes,  the  may  be  by  a  female,  with  a  good  motive. 

Nevertheless,  though  there  may  be  cases  which  are  not  immoral  in 


Sec.  5)  INTENT  IN  8TATUTORT  CRIMES.  99 

one  sense,  I  say  that  the  act  forbidden  is  wrong.  Let  us  remember 
what  is  the  case  supposed  by  the  statute.  It  supposes  that  there  is  a 
girl.  It  does  not  say  a  woman,  but  a  girl,  something  between  a  child 
and  a  woman.  It  supposes  she  is  in  possession  of  her  father,  or  moth- 
er, or  other  person  having  lawful  care  and  charge  of  her;  and  it  sup- 
poses there  is  a  taking,  and  that  that  taking  is  against  the  will  of  the 
person  in  whose  possession  she  is.  It  is,  then,  a  taking  of  a  girl  in  the 
possession  of  some  one  against  his  will.  I  say  that  done  without  law- 
ful cause  is  wrong,  and  that  the  Legislature  meant  it  should  be  at  the 
risk  of  the  taker,  whether  or  no  she  was  under  16.  I  do  not  say  that 
taking  of  a  woman  of  50  from  her  brother's,  or  even  father's,  house  is 
wrong.  She  is  at  an  age  when  she  has  a  right  to  choose  for  herself. 
,  She  is  not  a  girl,  nor  of  such  tender  age  that  she  can  be  said  to  be  in 
the  possession  of  or  under  the  care  or  charge  of  any  one.  If  I 
am  asked  where  I  draw  the  line,  I  answer  at  when  the  female  is  no 
longer  a  girl  in  any  one's  possession.  But  what  the  statute  contem- 
plates, and  what  I  say  is  wrong,  is  the  taking  of  a  female  of  such  ten- 
der years  that  she  is  properly  called  a  girl,  and  can  be  said  to  be  in  an- 
other's possession,  and  in  that  other's  care  or  charge.  No  argument  is 
necessary  to  prove  this.  It  is  enough  to  state  the  case.  The  Legis- 
lature has  enacted  that,  if  any  one  doss  this  wrong  act,  he  does  it  at 
the  risk  of  her  turning  out  to  be  under  16.  This  opinion  gives  full 
scope  to  the  doctrine  of  the  mens  rea.  If  the  taker  believed  he  had  the 
father's  consent,  though  wrongly,  he  would  have  no  mens  rea.  So  if 
he  did  not  know  she  was  in  any  one's  possession,  nor  in  the  care  or 
charge  of  any  one.  In  those  cases  he  would  not  know  he  was  doing 
the  act  forbidden  by  the  statute — an  act  which,  if  he  knew  she  was  in 
possession  and  care  or  charge  of  any  one,  he  would  know  was  a  crime 
or  not,  according  as  she  was  under  16  or  not.  He  would  know  he  was 
doing  an  act  wrong  itself,  whatever  was  his  intention,  if  done  without 
lawful  cause.  In  addition  to  these  considerations,  one  may  add  that 
the  statute  does  use  the  word  "unlawfully,"  and  does  not  use  the 
words  "knowingly  or  not  believing  to  the  contrary."  If  the  question 
was  whether  his  act  was  unlawful,  there  would  be  no  difficulty,  as  it 
clearly  was  not  lawful.  This  view  of  the  section,  to  my  mind,  is  much 
strengthened  by  a  reference  to  other  sections  of  the  same  statute. 
Section  50  makes  it  a  felony  to  unlawfully  and  carnally  know  a  girl 
under  the  age  of  10.  Section  51  enacts  (when  she  is  above  10  and  un- 
der 12)  to  unlawfully  and  carnally  know  her  is  a  misdemeanor.  Can 
it  be  supposed,  in  the  former  case,  a  person  indicted  might  claim  to  be 
acquitted  on  the  ground  that  he  had  believed  the  girl  was  over  10, 
though  under  12,  and  so  that  he  had  only  committed  a  misdemeanor, 
or  that  he  believed  her  over  12,  and  so  had  committed  no  offense  at  all, 
or  that  in  a  case  under  section  51  he  could  claim  to  be  acquitted,  be- 
cause he  believed  her  over  12?  In  both  cases  the  act  is  intrinsically 
wrong;  for  the  statute  says,  if  "unlawfully"  done.  The  act  done 
with  a  mens  rea  is  unlawfully  and  carnally  knowing  the  girl,  and  the 


100  THE   CRIMINAL   INTENT.  (Ch.  3 

man  doing  that  act  does  it  at  the  risk  of  the  child  being  under  the  stat- 
utory age.    It  would  be  mischievous  to  hold  otherwise.    So  section  56, 
by  which  whoever  shall  take  away  any  child  under  14,  with  intent  to 
deprive  parent  or  guardian  of  the  possession  of  the  child,  or  with  in- 
tent to  steal  any  article  upon  such  child,   shall  be  guilty  of   felony. 
Could  a  prisoner  say,  "I  did  take  away  the  child  to  steal  its  clothes, 
but  I  believed  it  to  be  over  14?"     If  not,  then  neither  could  he  say, 
"I  did  take  the  child  with  intent  to  deprive  the  parent  of  its  possession, 
but  I  believed  it  over  14."    Because,  if  words  to  that  effect  cannot  be 
introduced  into  the  statute  where  the  intent  is  to  steal  the  clothes,  nei- 
ther can  they  where  the  intent  is  to  take  the  child  out  of  the  possession 
of  the  parent.    But  if  these  words  cannot  be  introduced  in  section  56, 
why  can  they  be  in  section  55?     The  same  principle  applies  in  these 
cases.    A  man  is  held  liable  for  assaulting  a  police  officer  in  the  execu- 
tion of  his  duty,  though  he  did  not  know  he  was  a  police  officer.    Reg. 
v.  Forbes,  10  Cox,  C.  C.  362.    Why?    Because  the  act  was  wrong  in 
itself.    So,  also,  in  the  case  of  burglary;  could  a  person  charged  claim 
an  acquittal  on  the  ground  that  he  believed  it  was  past  6  a.  m.  when 
he  entered,  or  in  housebreaking  that  he  did  not  know  the  place  broken 
into  was  a  house?     As  to  the  case  of  the  marine  stores,  it  was  held 
properly  that  there  was  no  mens  rea,  where  the  persons  charged  with 
the  possession  of  naval  stores  with  the  admiralty  mark  did  not  know  the 
stores  he  had  bore  the  mark  (Reg.  v.  Sleep,  8  Cox,  C.  C.  472,  30  L. 
J.   171,   M.  C),  because  there  is  nothing  prima   facie  wrong  or  im- 
moral in  having  naval  stores  unless  they  are  so  marked.     But  suppose 
ne  one  had  told  him  there  was  a  mark,  and  he  had  said  he  would 
chance  whether  or  no  it  was  the  admiralty  mark.     So,  in  the  case  of 
the  carrier  with  game  in  his  possession,  unless  he  knew  he  had  it,  there 
would  be  nothing  done  or  permitted  by  him,  no  intentional  act  or  omis- 
sion.    So,  of  the  vitriol  sender,  there  was  nothing  wrong  in  sending 
such  packages  as  were  sent,  unless  they  contained  vitriol.    Take,  also, 
the  case  of  libel,  where  the  publisher  thought  the  occasion  privileged, 
or  that  he  I  tense  under  Lord  Campbell's  act,  but  was  wrong. 

He  would  not  be  entitled- to  be  acquitted,  because  there  was  no  mens 
rea.  Why?  Because  the  act  of  publishing  written  defamation  is 
wn.ng  where  there  is  no  lawful  cause.  Further,  there  have  been  four 
tis  on  tin's  statute  in  favor  of  the  construction  1  contend  for.  I 
say  it  i  tion  of  construction  of  this  particular  statute,  no  doubt 

bringing  thereto  the  common-law  doctrine  oi  mens  rea  being  a  neces- 
sary ingredienl  of  crime.  It  seems  to  me  impossible  to  say  thai  where 
a  person  tal  I  oul  of  her  father's  possession,  nol  knowing  wheth- 

er 5he  i    oi  under  16,  he  is  nol  guilty,  and  equally  impossible 

when  he  believes,  but  erroneously,  thai  she  is  old  enough  for  him  to 
do  a  wrong  acl  with  safety.    I  think  the  conviction  should  be  affirmed.9 

cord:    state  v.  Ruhl,  8  Iowa,  447  (1859);    Riley  v.  State  (Miss.)   is  Bo. 
n;  carnally   I  b    female   under    16  years,   Commonwealth    v 

Murphy,  166  M  <  '  N.   E    504,  80  L   R.   A.  784,  52   km.  St.   Rap,  496 


^fToL 


gee.  5)  INTENT   IN    STATUTORY   CRIMES.  101 

REGINA  v.  TOLSON. 
(Court  for  Crown  Cases  Reserved,  1889.    23  Q.  B.  DIv.  1G8.) 

Wills,  J.    In  this  case  the  prisoner  was  convicted  of  bigamy.     She 
married  a  second  time  within  seven  years  of  the  time  when  she  last 
knew  of  her  husband  being  alive,  but  upon  information  of  his  death, 
which  the  jury  found  that  she  upon  reasonable  grounds  believed  to  be 
true.    A  few  months  after  the  second  marriage  he  reappeared. 
""The  statute  upon  which  the  indictment  is  framed  is  St.  24  &  25  Vict. 
c.  100,  §  57,  which  is  in  these  words :   "Whoever,  being  married,  shall 
marry  any  other  person  during  the  life  of  the  former  husband  or  wife 
shall  be  guilty  of  felony,  punishable  with  penal  servitude  for  not  more 
than  seven  years,  or  imprisonment  with  or  without  hard  labor  for  not  i 
more  than  two  years" — with  a  proviso  that  "nothing  in  this  act  shall  i 
extend  to  any  person  marrying  a  second  time  whose  husband  or  wife  \ 
shall  have  been  continually  absent  from  such  person  for  the  space  of 
seven  years  last  past,  and  shall  not  have  been  known  by  such  person 
to  be  living  within  that  time." 

There  is  no  doubt  that  under  the  circumstances  the  prisoner  falls 
within  the  very  words  of  the  statute.  She,  being  married,  married  an- 
other person  during  the  life  of  her  former  husband,  and  when  she  did 
so  he  had  not  been  continually  absent  from  her  for  the  space  of  seven 
years  last  past. 

ItJs,  however,  undoubtedly  a  principle  of  English  criminal  law 
that,  ordinarily  speaking,  a  crime  is  not  committed  if  the  mind  of  the 
person  doing  the  act  in  question  be  innocent.  "It  is  a  principle  of  nat- 
ural justice  and  of  our  law,"  says  Lord  Kenyon,  C.  J.,  "that  'actus 
non  facit  reum,  nisi  mens  sit  rea.'  The  intent  and  act  must  both  con- 
cur to  constitute  the  crime."  Fowler  v.  Padgets,  7  T.  R.  509,  514. 
The  guilty  intent  is  not  necessarily  that  of  intending  the  very  act  or 
thing  done  and  prohibited  by  common  or  statute  law,  but  it  must  at 
least  be  the  intention  to  do  something  wrong.  That  intention  may  be- 
long to  one  or  other  of  two  classes.  It  may  be  to  do  a  thing  wrong 
in  itself  and  apart  from  positive  law,  or  it  may  be  to  do  a  thing  merely 
"pronlBhfcd  by  statute  or  by  common  law,  or  both  elements  of  intention 
may  coexist  with  respect  to  the  same  deed.  There  are  many  things 
prohibited  by  no  statute — fornication  or  seduction,  for  instance — which 
nevertheless  no  one  would  hesitate  to  call  wrong;  and  the  intention 
to  do  an  act  wrong  in  this  sense  at  the  least  must  as  a  general  rule  ex- 
ist before  the  act  done  can  be  considered  a  crime.  K£o\yjngly  and  inr 
tentionally  to  break  a  statute  must,  I  think,  from  the  judicial  point  of 
view,  always  be  morally~wrong,  in  the  absence  of  special  circumstances 
applicable  to  the  particuIaF  instance  and  excusing  the  breach  of  the 
law,  as,  for  instance,  if  a  municipal  regulation  be  broken  to  save  life 
or  to  put  out  a  fire.  But  to  make  it  morally  right  some  such  special 
matter  of  excuse  must  exist,  inasmuch  as  the  administration  of  jus- 


102  THE    CRIMINAL   INTENT.  (Ch.  3 

tice,  and,  indeed,  the  foundations  of  civil  society,  rest  upon  the  prin- 
ciple that  obedience  to  the  law,  whether  it  be  a  law  approved  of  or 
disapproved  of  by  the  individual,  is  the  first  duty  of  the  citizen. 

Although  prima  facie  and  as  a  general  rule  there  must  be  a  mind 
at  fault  before  there  can  be  a  crime,  it  is  not  an  inflexible  rule,  and  a 
I statute  may  relate  to  a  subject-matter  and  may  be  so  framed  as  to 
I  make  an  act  criminal  whether  there  has_  been  any  intention  to  break 
the  law  or  otherwise  to  do  wrong  or  not.  There  is  a  large  body  of 
municipal  law  in  the  present  day  which  is  so  conceived.  By-laws  are 
constantly  made  regulating  the  width  of  thoroughfares,  the  height  of 
buildings,  the  thicknesses  of  walls,  and  a  variety  of  other  matters  nec- 
essary for  the  general  welfare,  health,  or  convenience,  and  such  by- 
laws are  enforced  by  the  sanction  of  penalties,  and  the  breach  of  them 
constitutes  an  offense  and  is  a  criminal  matter.  In  such  cases  it  would, 
generally  speaking,  be  no  answer  to  proceedings  for  infringement  of 
the  by-law  that  the  person  committing  it  had  bona  fide  made  an  acci- 
dental miscalculation  or  an  erroneous  measurement.  The  acts  are 
properly  construed  as  imposing  the  penalty  when  the  act  is  done,  no 
matter  how  innocently,  and  in  such  a  case  the  substance  of  the  enact- 
ment is  that  a  man  shall  take  care  that  the  statutory  direction  is  obey- 
ed, and  that  if  he  fails  to  do  so  he  does  it  at  his  peril. 

Whether  an  enactment  is  to  be  construed  in  this  sense,  or  with  the 
qualification  ordinarily  imported  into  the  construction  of  criminal  stat- 
utes, that  there  must  be  a  guilty  mind,  must,  I  think,  depend  upon  the 
subject-matter  of  the  enactment  and  the  various  circumstances  that 
may  make  the  one  construction  or  the  other  reasonable  or  nnreasnn- 
abje.  There  is  no  difference,  for  instance,  in  the  kind  of  language  used 
by  acts  of  Parliament  which  made  the  unauthorized  possession  of  gov- 
ernment stores  a  crime,  and  the  language  used  in  by-laws  which  say 
that,  if  a  man  builds  a  house  or  a  wall  so  as  to  encroach  upon  a  space 
protected  by  the  by-law  from  building,  he  shall  be  liable  to  a  penalty. 
Yet  in  Reg.  v.  Sleep,  L.  &  C.  44,  30  L.  5,  (M.  C.)  170,  it  was  held  that 
a  person  in  possession  of  government  stores  with  the  broad  arrow 
could  not  be  convicted  when  there  was  not  sufficient  evidence  to  show 
that  he  knew  they  were  so  marked,  whilst  the  mere  infringement  of  a 
building  by-law  would  entail  liability  to  the  penalty.  There  is  no  dif- 
ference between  the  language  by  which  it  is  said  that  a  man  shall 
sweep  the  snow  from  the  pavement  in  front  of  his  house  before  a  given 
hour  in  the  morning,  and  if  he  fail  to  do  so  shall  pay  a  penalty,  and 
that  by  which  it  is  said  that  a  man  sending  vitriol  by  railway  shall 
mark  the  nature  of  the  goods  on  the  package  on  pain  of  forfeiting 
a  sum  of  money;  and  yet  I  suppose  that  in  the  first  case  the  penalty 
would  attach  if  the  thing  were  not  done,  whilst  in  the  other  case  it 
has  been  held  in  Hcarne  v.  Garton,  2  E.  &  E.  6G,  that  where  the  sender 
had  made  reasonable  inquiry,  and  was  tricked  into  the  belief  that  the 
guilds  were  of  an  innocent  character,  he  could  not  be  convicted,  al- 
though he  had  in  fad   sent  the  vitriol  not  properly  marked.     There  is 


Sec.  5)  INTENT   IN    STATUTORY    CRIMES.  103 

no  difference  between  the  language  by  which  it  is  enacted  that  "who- 
soever shall  unlawfully  and  willfully  kill  any  pigeon  under  such  cir- 
cumstances as  shall  not  amount  to  a  larceny  at  common  law"  shall 
be  liable  to  a  penalty,  and  the  language  by  which  it  is  enacted  that  "if 
any  person  shall  commit  any  trespass  by  entering  any  land  in  the  day- 
time in  pursuit  of  game"  he  shall  be  liable  to  a  penalty ;  and  yet  in  the 
first  case  it  has  been  held  that  his  state  of  mind  is  material  (Taylor  v. 
Newman,  4  B.  &  S.  89)  and  in  the  second  that  it  is  immaterial  (Wat- 
kins  v.  Major,  Law  Rep.  10  C.  P.  GG6).  So,  again,  there  is  no  differ- 
ence in  the  language  between  the  enactments  I  have  referred  to,  in 
which  the  absence  of  a  guilty  mind  was  held  to  be  a  defense,  and  that 
of  the  statute  which  says  that  "any  person  who  shall  receive  two  or 
more  lunatics"  into  any  unlicensed  house  shall  be  guilty  of  misdemean- 
or, under  which  the  contrary  has  been  held  (Reg.  v.  Bishop,  O.  B.  D. 
259).  A  statute  provided  that  any  clerk  to  justices  who  should,  under 
color  and  pretense  of  anything  done  by  the  justice  or  the  clerk,  re- 
ceive a  fee  greater  than  that  provided  for  by  a  certain  table,  should 
for  every  such  offense  forfeit  i20.  It  was  held  that  where  a  clerk  to 
justices  bona  fide  and  reasonably,  but  erroneously,  believed  that  there 
were  two  sureties  bound  in  a  recognizance  besides  the  principal,  and 
accordingly  took  a  fee  as  for  three  recognizances,  when  he  was  only 
entitled  to  charge  for  two,  no  action  would  lie  for  the  penalty.  "Act- 
us," says  Lord  Campbell,  "non  facit  reum,  nisi  mens  sit  rea.  Here  the 
defendant,  very  reasonably  believing  that  there  were  two  sureties 
bound,  beside  the  principal,  has  not,  by  making  a  charge  in  pursuance 
of  his  belief,  incurred  the  forfeiture.  The  language  of  the  statute  is 
'for  every  such  offense.'  If,  therefore,  the  table  allowed  him  to  charge 
for  three  recognizances,  where  there  are  a  principal  and  two  sureties, 
he  has  not  committed  an  offense  under  the  act."  Bowman  v.  Blyth,  7 
E.  &  B.  26,  43.  i 

If  identical  language  may  thus  be  legitimately  construed  in  two  op- 
posite senses,  and  is  sometimes  held  to  imply  that  there  is,  and  some- 
times that  there  is  not,  an  offense  when  the  guilty  mind  is  absent,  it 
is  obvious  that  assistance  must  be  sought  aliunde,  and  that  all  circurrH 
stances  must  be  taken  into  consideration  which  tend  to  show  that  the! 
one  construction  or  the  other  is  reasonable,  and  amongst  such  circum-V^, 
stances  it  is  impossible  to  discard  the  consequences.  This  is  a  consid-'1 
eration  entitled  to  little  weight  if  the  words  be  incapable  of  more  than 
one  construction;  but  I  have,  I  think,  abundantly  shown  that  there  is 
nothing  in  the  mere  form  of  words  used  in  the  enactment  now  under 
consideration  to  prevent  the  application  of  what  is  certainly  the  nor- 
mal rule  of  construction  in  the  case  of  a  statute  constituting  an  offense 
entailing  severe  and  degrading  punishment.  If  the  words  are  not  con- 
clusive in  themselves,  the  reasonableness  or  otherwise  of  the  construc- 
tion contended  for  has  always  been  recognized  as  a  matter  fairly  to  be 
taken  into  account.  In  a  case  in  which  a  woman  was  indicted  under 
St.  9  &  10  Wm.  Ill,  c.  41,  §  2,  for  having  in  her  possession  without 


104  THE    CRIMINAL   INTENT.  (Ch.  3 

a  certificate  from  the  proper  authority  government  stores  marked  in 
the  manner  described  in  the  act,  it  was  argued  that  by  the  act  the  pos- 
session of  the  certificate  was  made  the  sole  excuse,  and  that  as  she  had 
no  certificates  she  must  be  convicted.  Foster,  J.,  said,  however,  that 
though  the  words  of  the  statute  seemed  to  exclude  any  other  excuse, 
yet  the  circumstances  must  be  taken  into  consideration,  otherwise  a 
law  calculated  for  wise  purposes  might  be  made  a  handmaid  to  oppres- 
sion, and  directed  the  jury  that,  if  they  thought  the  defendant  came 
into  possession  of  the  stores  without  any  fraud  or  misbehavior  on 
her  part,  they  ought  to  acquit  her.  Fost.  C.  L.  (3d  Ed.)  App.  pp.  439, 
440.  This  ruling  was  adopted  by  Lord  Kenyon  in  Rex  v.  Banks,  1 
Esp.  144,  who  considered  it  beyond  question  that  the  defendant  might 
excuse  himself  by  showing  that  he  came  innocently  into  such  posses- 
sion, and  treated  the  unqualified  words  of  the  statute  as  merely  shift- 
ing the  burden  of  proof,  and  making  it  necessary  for  the  defendant  to 
show  matter  of  excuse,  and  to  negative  the  guilty  mind,  instead  of  its 
being  necessary  for  the  crown  to  show  the  existence  of  the  guilty 
mind.  Prima  facie  the  statute  was  satisfied  when  the  case  was  brought 
within  its  terms,  and  it  then  lay  upon  the  defendant  to  prove  that  the 
violation  of  the  law  which  had  taken  place  had  been  committed  acci- 
dentally or  innocently  so  far  as  he  was  concerned.  Suppose  a  man  had 
taken  up  by  mistake  one  of  two  baskets  exactly  alike  and  of  similar 
weight,  one  of  which  contained  innocent  articles  belonging  to  himself 
and  the  other  marked  government  stores,  and  was  caught  with  the 
wrong  basket  in  his  hand.  He  would  by  his  own  act  have  brought  him- 
self within  the  very  words  of  the  statute.  Who  would  think  of  convict- 
ing him  ?  And  yet  what  defense  could  there  be,  except  that  his  mind  was 
innocent,  and  that  he  had  not  intended  to  do  the  thing  forbidden  by  the 
statute?  In  Fowler  v.  Padget,  7  T.  R.  509,  the  question  was  whether 
it  was  an  act  of  bankruptcy  for  a  man  to  depart  from  his  dwelling 
house,  whereby  his  creditors  were  defeated  and  delayed,  although  he 
had  no  intention  of  defeating  and  delaying  them.  The  statute  which 
constituted  the  act  of  bankruptcy  was  St.  1  Jac.  I,  c.  15,  which  makes 
it  an  act  of  bankruptcy  (amongst  other  things)  for  a  man  to  depart 
his  dwelling  house  "to  the  intent  or  whereby  his  creditors  may  be  de- 
feated and  delayed."  The  Court  of  King's  Bench,  consisting  of  Lord 
Kenyon,  C.  J.,  and  Ashurst  and  Grose,  JJ.,  held  that  there  was  no 
act  of  bankruptcy.  "Bankruptcy,"  said  Lord  Kenyon,  "is  considered  as 
a  crime,  and  (lie  bankrupt  in  the  old  laws  is  called  an  offender;  but," 
he  adds  in  the  passage  already  cited,  "it  is  a  principle  of  natural  jus- 
tice and  of  our  law  that  actus  non  facit  rcum,  nisi  mens  sit  rca,"  and 
the  court  went  so  far  as  to  read  "and"  in  the  statute,  in  place  of  "or," 
which  is  the  word  used  in  the  act,  in  order  to  avoid  tin1  consequences 
which  appeafed  to  them  unjust  and  unreasonable.  In  Rex  v.  Banks, 
1  E  p.  ill,  above  cited,  Lord  Kenyon  referred  to  Foster,  J.'s,  ruling 
in  this  case  as  that  of  "one  of  the  best  crown  lawyers  that  ever  sat  in 
Westminster  Hall."    The  e  decisions  of  Poster,  J.,  and  Lord  Kenyon 


Sec.  5)  INTENT   IN    STATUTORY   CRIMES.  105 

have  been  repeatedly  acted  upon.  See  Reg.  v.  Willmette,  3  Cox,  C.  C. 
281;  Reg.  v.  Cohen,  8  Cox,  C.  C.  41;  Reg.  v.  Sleep  (in  the  Court  for 
C.  C.  R.)  L.  &  C.  44;  Reg.  v.  O'Brien,  15  U  T.  (N.  S.)  419. 

Now  in  the  present  instance  one  consequence  of  holding  that  the 
offense  is  complete  if  the  husband  or  wife  is  de  facto  alive  at  the  time 
of  the  second  marriage,  although  the  defendant  had  at  the  time  of  the 
second  marriage  every  reason  to  believe  the  contrary,  would  be  that, 
though  the  evidence  of  death  should  be  sufficient  to  induce  the  Court 
of  Probate  to  grant  probate  of  the  will  or  administration  of  the  goods 
of  the  man  supposed  to  be  dead,  or  to  prevail  with  the  jury  upon  an 
action  by  the  heir  to  recover  possession  of  his  real  property,  the  wife 
of  the  person  supposed  to  be  dead,  who  had  married  6  years  and  11 
months  after  the  last  time  that  she  had  known  him  to  be  alive  would  be 
guilty  of  JelQiry  in  case  he  should  turn  up  20  years  afterwards.  It/ 
would  be  scarcely  less  unreasonable  to  enact  that  those  who  had  in  the 
meantime  distributed  his  personal  estate  should  be  guilty  of  larceny.' 
It  seems  to  me  to  be  a  case  to  which  it  would  not  be  improper  to  ap- 
ply the  language  of  Lord  Kenyon,  when  dealing  with  a  statute  which, 
literally  interpreted,  led  to  what  he  considered  an  equally  preposter- 
ous result:  "I  would  adopt  any  construction  of  the  statute  that  the 
words  will  bear  in  order  to  avoid  such  monstrous  consequences." 
Fowler  v.  Padget,  7  T.  R.  509.  ^^^ 

Again,  the  nature  and  extent  of  the  penalty  attached  to  the  offense  , 
may  reasonably  be  considered.  There  is  nothing  that  need  shock  any 
mind  in  the  payment  of  a  small  pecuniary  penalty  by  a  person  who 
has  unwittingly  done  something  detrimental  to  the  public  interest. 
To  subject  him,  when  what  he  has  done  has  been  nothing  but  what 
any  well-disposed  man  would  have  been  very  likely  to  do  under  the 
circumstances,  to  the  forfeiture  of  all  his  goods  and  chattels,  which 
would  have  been  one  consequence  of  a  conviction  at  the  date  of  the 
act  of  24  &  25  Vict.,  to  the  loss  of  civil  rights,  to  imprisonment  with 
hard  labor,  or  even  to  penal  servitude,  is  a  very  different  matter;  and 
such  a  fate  seems  properly  reserved  for  those  who  have  transgressed 
morally,  as  well  as  unintentionally  done  something  prohibited  by  law. 
I  am  well  aware  that  the  mischiefs  which  may  result  from  bigamous 
marriages,  however  innocently  contracted,  are  great;  but  I  cannot 
think  that  the  appropriate  way  of  preventing  them  is  to  expose  to  the 
danger  of  a  cruel  injustice  persons  whose  only  error  may  be  that  of  act- 
ing upon  the  same  evidence  as  has  appeared  perfectly  satisfactory  to 
a  Court  of  Probate,  a  tribunal  emphatically  difficult  to  satisfy  in  such 
matters,  and  certain  only  to  act  upon  what  appears  to  be  the  most 
cogent  evidence  of  death.  It  is,  as  it  seems  to  me,  undesirable  in  the 
highest  degree  without  necessity  to  multiply  instances  in  which  people 
shall  be  liable  to  conviction  upon  very  grave  charges  when  the  cir- 
cumstances are  such  that  no  judge  in  the  kingdom  would  think  of  pro- 
nouncing more  than  a  nominal  sentence. 

It  is  said,  however,  in  respect  to  the  offense  now  under  discussion, 


106  THE   CRIMINAL   INTENT.  (Ch.  3 

that  the  proviso  in  St.  24  &  25  Vict.  c.  100,  §  57,  that  "nothing  in  the 
section  shall  extend  to  any  person  marrying  a  second  time  whose  hus- 
band or  wife  shall  have  been  continually  absent  from  such  person  for 
seven  years  last  past,  and  shall  not  have  been  known  by  such  person 
to  be  living  within  that  time,"  points  out  the  sole  excuse  of  which  the 
act  allows.  I  cannot  see  what  necessity  there  is  for  drawing  any  such 
inference.  It  seems  to  me  that  it  merely  specifies  one  particular  case, 
and  indicates  what  in  that  case  shall  be  sufficient  to  exempt  the  party 
without  any  further  inquiry  from  criminal  liability;  and  I  think  it 
is  an  argument  of  considerable  weight,  in  this  connection,  that  under  St. 
9  &  10  Wm.  Ill,  c.  41,  §  2,  where  a  similar  contention  was  founded  up- 
on the  specification  of  one  particular  circumstance  under  which  the 
possession  of  government  stores  should  be  justified,  successive  judges 
and  courts  have  refused  to  accede  to  the  reasoning,  and  have  treated 
it,  to  use  the  words  of  Lord  Kenyon,  as  a  matter  that  "could  not  bear 
a  question"  that  the  defendant  might  show  in  other  ways  that  nis  pos- 
session was  without  fraud  or  misbehavior  on  his  part.    Rex  v.  Banks. 

Upon  the  point  in  question  there  are  conflicting  decisions.  It  was 
held  by  Martin,  B.,  in  Reg.  v.  Turner,  9  Cox,  C.  C.  145,  and  by  Cleas- 
by,  B.,  in  Reg.  v.  Horton,  11  Cox,  C.  C.  670,  that  bona  fide  belief,  at 
the  time  of  the  second  marriage,  upon  reasonable  grounds,  that  the 
first  husband  or  wife  was  dead,  was  a  defense.  In  Reg.  v.  Gibbons, 
12  Cox,  C.  C.  237,  it  is  said  that  it  was  held  by  Brett,  J.,  after  consult- 
ing Willes,  J.,  that  such  a  belief  was  no  defense.  The  report,  however, 
is  most  unsatisfactory,  as,  if  the  facts  were  as  there  stated,  there  was 
no  reasonable  evidence  of  such  belief  upon  any  reasonable  grounds, 
and  in  Reg.  v.  Prince,  L.  R.  2  C.  C.  R.  154,  Brett,  J.,  gave  a  very  elab- 
orate judgment  containing  his  matured  and  considered  opinion  upon 
a  similar  question,  which  it  is  quite  impossible  to  reconcile  with  the  sup- 
posed ruling  in  Reg.  v.  Gibbons. 

In  Reg.  v.  Bennett,  14  Cox,  C.  C.  45,  Bramwell,  L.  J.,  is  reported 
to  have  followed  Reg.  v.  Gibbons,  and  to  have  said  that  he  had  always 
refused  to  act  upon  Reg.  v.  Turner.  But  here  again  the  report  is  emi- 
nently unsatisfactory,  for  it  proceeds  to  state  that  the  prisoner  was 
convicted  of  two  other  offenses,  forgery  and  obtaining  money  by  false 
uses,  and  sentenced  to  ten  years'  penal  servitude,  which  is  a  great- 
er sentence  than  he  could  have  received  for  bigamy.  Except  for  the 
purpose  of  bringing  out  the  sort  of  man  that  the  prisoner  was,  and  so 
emphasizing  the  fact  that  he  deserved  condign  punishment,  the  bigamy 
trial  might  have  been  omitted. 

In  Reg.  v.  Moore,  13  Cox,  C.  C.  544,  Denman,  J.,  after  consultation 
with  Amphlett,  L.  J.,  directed  the  acquittal  of  a  woman  charged  with 
bigamy,  the  jury  having  found  that,  although  seven  years  had  not 
elapsed  Since  'In-  last  knew  that  her  husband  was  living,  she  had,  when 
she  married  a  second  time,  a  reasonable  and  bona  fide  belief  that  he 
was  dead,  saying  that  in  his  opinion  and  that  of  Amphlett,  L.  J.,  such 


Sec.  5)  INTENT    IN    STATUTORY   CRIMES.  107 

a  belief  was  a  defense.    He  added,  however,  that  his  opinion  was  not 

j  to  be  taken  as  a  final  one,  and  that,  had  the  circumstances  been  such 

that  the  prisoner  would,  if  the  conviction  could  be  sustained,  have  de- 

,  served  a  substantial  sentence,  he  should  have  directed  a  conviction, 

>  and  reserved  the  question. 

There  is  nothing,  therefore,  in  the  state  of  the  authorities  directly 
bearing  upon  the  question  to  prevent  one  from  deciding  it  upon  the 
j  grounds  of  principle.  It  is  suggested,  however,  that  the  important 
decision  of  the  court  of  15  judges  in  *Reg.  v.  Prince  is  an  authority 
in  favor  of  a  conviction  in  this  case.  I  do  not  think  so.  In  Reg.  v. 
Prince  the  prisoner  was  indicted  under  St.  24  &  25  Vict.  c.  100,  §  55, 
for  "unlawfully  taking  an  unmarried  girl,  then  being  under  the  age  of 
sixteen  years,  out  of  the  possession  and  against  the  will  of  her  father." 
The  jury  found  that  the  prisoner  bona  fide  believed  upon  reasonable 
grounds  that  she  was  18.  The  court  (dissentiente  Brett,  J.)  upheld 
the  conviction.  Two  judgments  were  delivered  by  a  majority  of  the 
court,  in  each  of  which  several  judges  concurred,  whilst  three  of  them, 
Denman,  J.,  Pollock,  B.,  and  Quain,  J.,  concurred  in  both.  The  first 
of  the  two,  being  the  judgment  of  nine  judges,  upheld  the  conviction 
upon  the  ground  that,  looking  to  the  subject-matter  of  the  enactment, 
to  the  group  of  sections  amongst  which  it  is  found,  and  to  the  history 
of  legislation  on  the  subject,  the  intention  of  the  Legislature  was  that, 
if  a  man  took  an  unmarried  girl  under  16  out  of  the  possession  of  her 
father  against  his  will,  he  must  take  his  chance  of  whether  any  belief 
he  might  have  about  her  age  was  right  or  wrong,  and  if  he  made  a 
mistake  upon  this  point  so  much  the  worse  for  him ;  he  must  bear  the 
consequences.  The  second  of  the  two  judgments,  being  that  of  seven 
judges,  gives  a  number  of  other  reasons  for  arriving  at  the  same  con- 
clusion, some  of  them  founded  upon  the  policy  of  the  Legislature  as 
illustrated  by  other  associated  sections  of  the  same  act.  This  judg- 
ment contains  an  emphatic  recognition  of  the  doctrine  of  the  "guilty 
mind"  as  an  element,  in  general,  of  a  criminal  act,  and  supports  the 
conviction  upon  the  ground  that  the  defendant,  who  believed  the  girl 
to  be  18  and  not  16,  even  then,  in  taking  her  out  of  the  possession  of 
the  father  against  his  will,  was  doing  an  act  wrong  in  itself.  "This 
opinion,"  says  the  judgment,  "gives  full  scope  to  the  doctrine  of  the 
mens  rea." 

The  case  of  Reg.  v.  Prince,  therefore,  is  a  direct  and  cogent  author- 
ity for  saying  that  the  intention  of  the  Legislature  cannot  be  decided 
upon  simple  prohibitory  words,  without  reference  to  other  considera- 
tions. The  considerations  relied  upon*  in  that  case  are  wanting  in  the 
present  case,  whilst,  as  it  seems  to  me,  those  which  point  to  the  ap- 
plication of  the  principle  underlying  a  vast  area  of  criminal  enactment, 
that  there  can  be  no  crime  without  a  tainted  mind,  preponderate  great- 
ly over  any  that  point  to  its  exclusion. 

In  my  opinion,  therefore,  this  conviction  ought  to  be  quashed.    My 


108  THE    CRIMINAL   INTENT.  (Ch.  3- 

Brother  Charles  authorizes  me  to  say  that  this  judgment  expresses 
his  views  as  well  as  my  own.1 

ManisTy,  J.    I  am  of  opinion  that  the  conviction  should  be  affirmed. 

The  question  is  whether,  if  a  married  woman  marries  another  man 
during  the  life  of  her  former  husband  and  within  seven  years  of  his 
leaving  her,  she  is  guilty  of  felony;  the  jury  having  found  as  a  fact 
that  she  had  reason  to  believe  and  did  honestly  believe  that  her  former 
husband  was  dead. 

The  fifty-seventh  section  of  St.  24  &  25  Vict.  c.  100,  is  as  express 
and  as  free  from  ambiguity  as  words  can  make  it.  The  statute  says: 
"Whosoever  being  married  shall  marry  any  other  person  during  the 
life  of  the  former  husband  or  wife  *  *  *  shall  be  guilty  of  felony, 
and  being  convicted,  shall  be  liable,  at  the  discretion  of  the  court,  to 
be  kept  in  penal  servitude  for  any  term  not  exceeding  seven  years, 
and  not  less  than  three  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labor."  The  statute  does 
not  even  say,  if  the  accused  shall  feloniously  or  unlawfully  or  knowing- 
ly commit  the  act,  he  or  she  shall  be  guilty  of  felony;  but  the  enact- 
ment is  couched  in  the  clearest  language  that  could  be  used  to  prohibit 
the  act  and  to  make  it  a  felony  if  the  act  is  committed. 

If  any  doubt  could  be  entertained  on  the  point,  it  seems  to  me  the 
proviso  which  follows  the  enactment  ought  to  remove  it.  The  proviso 
is  that  "nothing  in  the  fifty-seventh  section  of  the  act  shall  extend 
to  any  person  marrying  a  second  time  whose  husband  or  wife  shall 
have  been  continually  absent  from  such  person  for  the  space  of  seven 
years  then  last  past  and  shall  not  have  been  known  by  such  person  to 
be  living  within  that  time." 

Such  being  the  plain  language  of  the  act,  it  is,  in  my  opinion,  the 
imperative  duty  of  the  court  to  give  effect  to  it,  and  to  leave  it  to  the 
Legislature  to  alter  the  law  if  it  thinks  it  ought  to  be  altered. 

Probably,  if  the  law  was  altered,  some  provision  would  be  made  in  fa- 
vor of  children  of  the  second  marriage.  If  the  second  marriage  is  to  be 
deemed  to  be  legal  for  one  purpose,  surely  it  ought  to  be  deemed  legal 
as  to  the  children  who  are  the  offspring  of  it.  If  it  be  within  the  prov- 
ince of  the  court  to  consider  the  reasons  which  induced  the  Legisla- 
ture to  pass  the  act  as  it  is,  it  seems  to  me  one  principal  reason  is  on 
the  surface,  namely,  the  consequence  of  a  married  person  marrying 
again  in  the  lifetime  of  his  or  her  former  wife  or  husban'd,  in  which 
case  it  might,  and  in  many  cases  would,  be  that  several  children  of 
the  second  marriage  would  be  born,  and  all  would  be  bastards.  The 
proviso  is  evidently  founded  upon  the  assumption  that,  after  the  lapse 
of  seven  years  and  the  former  husband  or  wife  not  being  heard  of, 
it  may  reasonably  be  inferred  that  he  or  she  is  dead,  and  thus  the  mis- 

i  Part  of  this  opinion,  and  the  concurring  opinions  of  Cave,  Stephen,  and 
Hawkins,  33.,  and  Coleridge,  C.  J.,  and  dissenting  opinion  of  Denman,  J., 

are  omlttd. 


Sec.  5)  INTENT   IN    STATUTORY    CHIMES.  109 

chief  of  a  second  marriage  in  the  lifetime  of  the  former  husband  or 
wife  is  to  a  great  extent,  if  not  altogether,  avoided. 

It  is  to  be  borne  in  mind  that  bigamy  never  was  a  crime  at  common 
law.  It  has  been  the  subject  of  several  acts  of  Parliament,  and  is  now 
governed  by  St.  21  &  25  Vict.  c.  100,  §  57. 

No  doubt,  in  construing  a  statute,  the  intention  of  the  Legislature 
is  what  the  court  has  to  ascertain;  but  the  intention  must  be  collected 
from  the  language  used,  and  where  that  language  is  plain  and  explicit 
and  free  from  all  ambiguity,  as  it  is  in  the  present  case,  I  have  always 
understood  that  it  is  the  imperative  duty  of  judges  to  give  effect  to  it. 

The  cases  of  insanity,  etc.,  on  which  reliance  is  placed,  stand  on  a 
totally  different  principle,  viz.,  that  of  an  absence  of  mens.  Igno- 
rance of  the  law  is  no  excuse  for  the  violation  of  it,  and,  if  a  person 
choose  to  run  the  risk  of  committing  a  felony,  he  or  she  must  take  the 
consequences,  if  it  turn  out  that  a  felony  has  been  committed. 

Great  stress  is  laid  by  those  who  hold  that  the  conviction  should  be 
quashed  upon  the  circumstance  that  the  crime  of  bigamy  is  by  the  stat- 
ute declared  to  be  a  felony,  and  punishable  with  penal  servitude  or  im- 
prisonment with  or  without  hard  labor  for  any  term  not  exceeding 
two  years.  If  the  crime  had  been  declared  to  be  a  misdemeanor,  pun- 
ishable with  fine  or  imprisonment,  surely  the  construction  of  the  statute 
would  have  been,  or  ought  to  have  been,  the  same.  It  may  well  be 
that  the  Legislature  declared  it  to  be  a  felony  to  deter  married  per- 
sons from  running  the  risk  of  committing  the  crime  of  bigamy,  and 
in  order  that  a  severe  punishment  might  be  inflicted  in  cases  where 
there  were  no  mitigating  circumstances.  No  doubt  circumstances  may 
and  do  affect  the  sentence,  even  to  the  extent  of  the  punishment  being 
nominal,  as  it  was  in  the  present  case ;  but  that  is  a  very  different 
thing  from  disregarding  and  contravening  the  plain  words  of  the  act 
of  Parliament. 

The  case  is  put  by  some  of  my  learned  Brothers  of  a  married  man 
leaving  his  wife  and  going  into  a  foreign  country,  intending  to  settle 
there,  and,  it  may  be,  afterwards  to  send  for  his  wife  and  children, 
and  the  ship  in  which  he  goes  is  lost  in  a  storm,  with,  as  is  supposed, 
all  on  board,  and  after  the  lapse  of  say  a  year,  and  no  tidings  received 
of  any  one  having  been  saved,  the  underwriters  pay  the  insurance  on 
the  ship,  and  the  supposed  widow  gets  probate  of  her  husband's  will, 
and  marries,  and  has  children,  and  after  the  lapse  of  several  years  the 
husband  appears,  it  may  be  a  few  days  before  seven  years  have  expired, 
and  the  question  is  asked,  would  it  not  be  shocking  that  in  such  a  case 
the  wife  could  be  found  guilty  of  bigamy? 

My  answer  is  that  the  act  of  Parliament  says  in  clear  and  express 
words,  for  very  good  reasons,  as  I  have  already  pointed  out,  that  she 
is  guilty  of  bigamy.  The  only  shocking  fact  would  be  that  some  one 
for  some  purpose  of  his  own  had  instituted  the  prosecution.  I  need 
not  say  that  no  public  prosecutor  would  ever  think  of  doing  so,  and  the 
judge  before  whom  the  case  came  on  for  trial  would,  as  my  Brother 


110  THE    CRIMINAL   INTENT.  (Ch.  3 

Stephen  did  in  the  present  case,  pass  a  nominal  sentence  of  a  day 's_  im- 
prisonment (which  in  effect  is  immediate  discharge),  accompanied,  if 
I  were  the  judge,  with  a  disallowance  of  the  costs  of  the  prosecution. 
It  may  be  said :  But  the  woman  is  put  to  some  trouble  and  expense 
in  appearing  before  the  magistrate,  who  would,  of  course,  take  nominal 
bail,  and  in  appearing  to  take  her  trial.  Be  it  so;  but  such  a  case 
would  be  very  rare  indeed.  On  the  other  hand,  see  what  a  door  would 
be  opened  to  collusion  and  mischief,  if,  in  the  vast  number  of  cases 
where  men  in  humble  life  leave  their  wives  and  go  abroad,  it  would 
be  a  good  defense  for  a  woman  to  say,  and  give  proof  which  the  jury 
believed,  that  she  had  been  informed  by  some  person  upon  whom  she 
honestly  thought  she  had  reason  to  rely,  and  did  believe,  that  her  hus- 
band was  dead,  whereas  in  fact  she  had  been  imposed  upon,  and  her 
husband  was  alive. 

What  operates  strongly  on  my  mind  is  this :  that  if  the  Legisla- 
ture intended  to  prohibit  a  second  marriage  in  the  lifetime  of  a  former 
husband  or  wife,  and  to  make  it  a  crime,  subject  to  the  proviso  as  to 
seven  years,  I  do  not  believe  that  language  more  apt  or  precise  could 
be  found  to  give  effect  to  that  intention  than  the  language  contained  in 
the  fifty-seventh  section  of  the  act  in  question.  In  this  view  I  am 
fortified  by  several  sections  of  the  same  act,  where  the  words  "unlaw- 
fully" and  "maliciously  and  unlawfully"  are  used  (as  in  section  23), 
and  by  a  comparison  of  them  with  the  section  in  question  (section  57), 
where  no  such  words  are  to  be  found.  I  especially  rely  upon  the  fifty- 
fifth  section,  by  which  it  is  enacted  that  "whosoever  shall  unlawfully" 
(a  word  not  used  in  section  57)  "take  or  cause  to  be  taken  any  unmar- 
ried girl  being  under  the  age  of  sixteen  years  out  of  the  possession  of 
her  father  or  mother  or  any  other  person  having  the  lawful  care  or 
charge  of  her,  shall  be  guilty  of  a  misdemeanor."  Fifteen  out  of  16 
judges  held  in  the  case  of  Reg.  v.  Prince,  Law  Rep.  2  C.  C.  R.  154, 
that,  notwithstanding  the  use  of  the  word  "unlawfully,"  the  fact  of 
•the  prisoner  believing  and  having  reason  to  believe  that  the  girl  was 
over  16  afforded  no  defense.  This  decision  is  approved  of  upon  the 
present  occasion  by  5  judges,  making  in  all  20,  against  the  9  who  are 
in  favor  of  quashing  the  conviction.  To  the  20  I  may,  I  think,  fairly 
add  Tindal,  C.  J.,  in  Reg.  v.  Robins,  1  C.  &  K.  456,  and  Willes,  J.,  in 
Reg.  v.  Mvcock,  12  Cox,  C.  C.  28. 

I  rely,  also,  very  much  upon  the  fifth  section  of  the  act  passed  in 
for  the  better  protection  of  women  and  girls  (St.  is  &  r.i  \  ict. 
c.  CO),  by  which  it  was  enacted  that  "any  person  who  unlawfully  and 
carnally  knows  any  girl  above  thirteen  and  under  sixteen  years  shall 
be  guilty  of  a  misdemeanor."  But  to  thai  is  added  a  proviso  that  "it 
shall  be  a  sufficienl  defen  e  if  il  be  made  to  appear  to  the  court  or 
jury  before  whom  the  charge  shall  be  broughl  thai  the  person  charged 
had  reasonable  cau  e  to  believe  and  did  believe  that  the  girl  was  of  or 
above  the  age  of  16."  It  is  to  be  observed  that,  notwithstanding  the 
word  "unlawfully"  appears  in  this  section,  it  was  considered  nec< 


Sec.  5)  INTENT   IN    STATUTORY    CRIMES.  Ill 

to  add  the  proviso,  without  which  it  would  have  been  no  defense  that 
the  accused  had  reasonable  cause  to  believe  and  did  believe  that  the 
girl  was  of  or  above  the  age  of  16.  Those  who  hold  that  the  conviction 
in  the  present  case  should  be  quashed  really  import  into  the  fifty-sev- 
enth section  of  St.  24  &  25  Vict.  c.  100,  the  proviso  which  is  in  the 
fifth  section  of  St.  48  &  49  Vict.  c.  69,  contrary,  as  it  seems  to  me,  to 
the  decision  in  Reg.  v.  Prince,  Law  Rep.  2  C.  C.  R.  154,  and  to  the 
hitherto  undisputed  canons  for  construing  a  statute. 

I  think  the  conviction  should  be  affirmed.  My  Brothers  Denman, 
Pollock,  Field,  and  Huddleston  agree  with  this  judgment;  but 
my  Brother  Denman  has  written  a  short  opinion  of  his  own,  with 
which  my  Brother  Field  agrees. 

Conviction  quashed.2 


STATE  v.  RIPPETH. 

(Supreme  Court  of  Ohio,  1904.     71  Ohio  St.  85,  72  N.  E.  208.) 

One  Rippeth  was  convicted  of  selling  oleomargarine  in  imitation 
of  butter,  and  on  error  the  judgment  of  conviction  was  set  aside  in 
the  circuit  court,  and  the  state  brings  error. 

The  defendant  in  error  was  charged,  by  affidavit  filed  with  P.  A. 
Garver,  a  Justice  of  the  peace  in  and  for  Franklin  township,  Tuscar- 
awas county,  wrETi  having'  unlaw  fully  sold  and  delivered  to  one  Martin 
Cowen  oleomargarine  to  the  amount  of  one  pound,  which  oleomarga- 
rine then  and  there  contained  artificial  (yellow)  coloring  matter,  the 

2  Accord:    Adultery,  Banks  v.  State,  96  Ala.  78,  11  South.  404  (1891). 

Selling  liquor  to  minors,  People  v.  "Welch,  71  Mich.  548,  39  N.  W.  747,  i 
L.  R.  A.  385  (1888).  [Contra:  State  v.  Hartfiel.  24  Wis.  60  (1SG9) ;  Farmer 
v.  People,  77  111.  322  (1875) ;  State  v.  Cain,  9  W.  Va.  559  (1S76) ;  Common- 
wealth v.  Finnegan,  124  Mags.  324  (1878) ;  Redmond  v.  State,  36  Ark.  58,  38 
Am.  Rep.  24  (1880) ;  State  v.  Sasse,  6  S.  D.  212.  60  N.  W.  853,  55  Am.  St. 
Rep.  834  (1S94) ;  In  re  Carlson's  License,  127  Pa.  330,  18  Atl.  8  (18S9).J  Sell- 
ing liquor  to  habitual  drunkards,  Williams  v.  State,  48  Ind.  306  (1874) ;  Crab- 
tree  v.  State,  30  Ohio  St.  382  (1876);  Smith  v.  State,  55  Ala.  1  (1S76). 
[Contra:  Barnes  v.  State,  19  Conn.  398  (1849) ;  State  v.  Heck,  23  Minn.  549 
(1877).]  Having  in  possession  counterfeiting  tools,  People  v.  White,  34  Cal. 
183  (1S67).  Illegal  voting  by  person  under  21  years,  Gordon  v.  State,  52 
Ala.  308,  23  Am.  Rep.  575  (1875).  Permitting  growth  of  Canada  thistles. 
Story  v.  People,  79  111.  App.  562  (1898).  Contra:  Bigamy,  Commonwealth 
v.  Mash.  7  Mete.  (Mass.)  472  (1S44) ;  Davis  v.  Commonwealth,  13  Bush  (Ky.) 
31S  (1877)  :  State  v.  Zichfeld,  23  Nev.  304,  46  Pac.  802.  34  L.  R.  A.  784.  62 
Am.  St.  Rep.  SOO  (1S96).  Adultery,  State  v.  Goodenow,  65  Me.  30  (1876); 
People  v.  Hartman,  130  Cal.  4S7,  62  Pac.  823  (1900).  Allowing  minors  to 
loiter  on  premises,  State  v.  Kinkead,  57  Conn.  173,  17  Atl.  855  (1SS9).  Sell- 
ing adulterated  food,  Commonwealth  v.  Farren,  91  Mass.  4S9  QSt;4) :  State  v. 
Smith,  10  R.  I.  258  (1872);  People  v.  Kibler,  106  N.  Y.  321,  12  N.  E.  795 
(1SS7);  State  v.  Newton,  50  N.  J.  Law.  534,  14  Atl.  604  (18S8) ;  State  v. 
Kellv,  54  Ohio  St.  166,  43  N.  E.  163  (1S96).  Selling  intoxicating  liquor.  King 
v.  State.  66  Miss.  502.  6  South.  188  (1889);  Commonwealth  v.  O'Kean,  152 
Mass.  584,  26  N.  E.  97  (1891).  Having  in  possession  adulterated  tobacco,  Reg. 
v.  Woodrow,  15  M.  &  W.  404  (3846).  Selling  vinegar  below  standard.  Feople 
v.  Grocer  Co.,  118  Mich.  604,  77  N.  W.  315  (1S98).  Removing  timber  from 
school  lands,  State  v.  Dorman,  9  S.  D.  52S,  70  N.  W.  S48  (1897). 


112  THE    CRIMINAL   INTENT.  (Ch.  3 

name  of  which  coloring  matter  was  unknown  to  the  affiant,  con- 
trary to  statute  in  such  case  made  and  provided,  etc.  On  this  affi- 
davit the  defendant  was  put  upon  trial  to  a  jury  of  12  men.  The 
purchaser  of  the  said  oleomargarine,  Martin  Cowen,  is  an  inspector 
in  the  dairy  and  food  department  of  the  state  of  Ohio,  and  it  appeared 
upon  the  trial  that  on  the  17th  day  of  January,  1901,  the  said  Martin 
Cowen  entered  the  grocery  of  the  defendant  in  error,  presented  his 
card,  which  contained  his  name,  address,  and  official  capacity,  then 
and  there  stating  to  said  defendant  in  error  that  he  was  a  state  food 
inspector,  and  that  he  desired  to  see  his  oleomargarine.  The  defend- 
ant in  error  took  said  Cowen  around  his  counter  and  showed  him  the 
oleomargarine,  which  was  done  up  in  pound  packages.  Cowen  said 
to  Rippeth,  "I  would  like  to  have  a  pound  of  this  oleomargarine  for 
analysis,"  whereupon  Rippeth  said,  "All  right,"  and  delivered  the 
oleomargarine,  and  accepted  the  market  price  therefor.  The  same 
was  taken  to  a  chemist — Prof.  Hobbs — and  was  analyzed  by  him,  and 
proved  to  contain  coloring  matter.  At  the  close  of  the  testimony 
offered  by  the  state  the  defendant  made  a  moTiuTr"fo~"lhe  justice  to 
direct  a  verdict  in  his  behalf.  The  court  overruled  this  motion,  and, 
n'o_eyidence  being  offered  by  the  defense,  the  case  was  argued  by 
counsel,  and  after  a  charge  by  the  court  was  submitted  to  the  jury, 
who  returned  a  verdict  of  guilty.  Motion  to  set  aside  the— verdict 
was  filed  by  the  defendant,  and  overruled  by  the  justice,  f  A  bill  of 
exceptions  was  prepared,  signed,  and  allowed,  and  proceedings  in 
error  prosecuted  in  the  court  of  common. pleas,  where  the  judgment 
of  the  justice  of  the  peace  was  affirmed.  -On  petition  in  error  in  the 
circuit  court  the  judgment  of  the  court  of  common  pleas  was  revers- 
ed, jand  this  proceeding  in  error  is  prosecuted  to  reverse  the  judg- 
ment of  the  circuit  court  and  affirm  the  judgment  of  the  court  of 
common  pleas. 

Per  Curiam.     Section  4200-16,  Bates'  Ann.  St.,  makes  it  a  penal 

offense  for  any  person  to  "sell  or  deliver"  any  oleomargarine  which 

contains   coloring   matter.      This   is    a   police    regulation,   imposing   a 

iective  of  criminal  intent;    and  it  contains  no  exception 

in  Favo?  of  any  person,  nor  as  to  whom  the  prohibited  article  may  be 

red,  nor  for  what  purpose.     The  dealer  in  the  adult er- 

article  has  it  in  his  possession  for  sale,  and  sells  or  delivers  the 

une  at  his  peril.     Tic  cannot  shield  himself  by  the  plea  of  ignorance 

!  to  its  character,  nor  by  the  plea  that  he  made  the  sale  for 

analysis,  or  for  any  other  purpose.     State  v.   Kelly,  54  Ohio  St.   L66, 

'     '  .    HutChlB  on,  56  <  foio  St.  82,  !<;  X.  K.  71. 

mient  of  the  circuit  court  reversed,  and  judgment  of  the  court 
ffirmed. 

w,  C.  J.,  and  i»  .  Price,  and  Summers,  JJ.,  concur. 

•./,  J.  (dissenting).1     I  cannot  concur  in  the  conclusion  rea 
by  a  majority  of  the  court  that  the  judgment  of  conviction  in  this 

>  Pari  of  this  opinion  is  omil  ted. 


Sec.  5)  INTENT   IN   8TATUTOUT   CRIMES.  113 

case  was  right  and  should  be  affirmed.  Section  4200-16,  Bates'  Ann 
St.,  provides  that  "no  person  shall  manufacture,  offer  or  expose  for 
sale,  sell  or  deliver,  or  have  in  his  possession  with  intent  to  sell  or 
deliver,  any  oleomargarine  which  contains  any  methly  [methyl], 
orange,  butter  yellow,  annato,  analine  dye,  or  any  other  coloring  mat- 
ter." Section  4200-7  provides  that  "every  person  manufacturing, 
offering  or  exposing  for  sale,  or  delivering  to  a  purchaser,  any  drug 
or  article  of  food  included  in  the  provisions  of  this  act,  shall  furnish 
to  any  person  interested,  or  demanding  the  same,  who  shall  apply 
to  him  for  the  purpose,  and  shall  tender  him  the  value  of  the  same,  a 
sample  sufficient  for  the  analysis  of  any  such  drug  or  article  of  food 
which  is  in  his  possession."  And  by  section  4200-8  it  is  provided 
that  "whoever  refuses  to  comply,  upon  demand,  with  the  require- 
ments of  section  4  (section  4200-7),  and  whoever  violates  any  of  the 
provisions  of  this  act,  shall  be  guilty  of  a  misdemeanor,  and  upon 
:onviction  shall  be  fined  not  exceeding  one  hundred  dollars  nor  less 
that  twenty-five  dollars,  or  imprisoned  not  exceeding  one  hundred  nor 
less  than  thirty  days,  or  both."  It  will  be  observed  that  above  sec- 
*ton  4200-7  is  not  merely  directory,  but  is  in  terms  peremptory  and 
mandatory,  and  a  failure  to  comply  with  its  provisions  is  by  section 
4200-8  made  a  misdemeanor  punishable  by  fine  or  imprisonment,  or 
both.  If,  then,  the  sample  of  oleomargarine  furnished  and  deliver- 
ed by  Rippeth  to  the  inspector,  Cowen,  on  his  demand,  and  for  the  pur- 
pose of  analysis,  was  oleomargarine  which  Rippeth  was  "offering  or 
exposing  for  sale,"  then  such  furnishing  and  delivery  by  Rippeth  was, 
by  force  of  the  provisions  of  section  4200-7,  made  compulsory,  and 
such  furnishing  would  not,  therefore,  in  legal  intendment,  amount  to 
or  constitute  a  sale,  inasmuch  as  in  such  transaction  one  of  the  es- 
sential elements  of  the  contract  of  sale  is  wanting,  viz.,  the  voluntary 
assent  of  the  seller.  Furthermore,  section  4200-7,  as  we  have  seen, 
peremptorily  commands  and  requires  a  dealer  in  oleomargarine  to 
furnish  to  the  inspector,  or  any  person  demanding  the  same,  on  de- 
mand and  tender  of  the  price,  a  sample  of  such  oleomargarine  for  the 
purpose  of  analysis,  and  a  penalty  is  provided  for  his  refusal  so  to  do. 
So  that  what  was  done  by  Rippeth  in  this  case  in  the  matter  of  fur- 
nishing or  delivering  to  Cowen,  the  inspector,  this  sample  of  oleo- 
margarine was  that  only  which  the  statute  itself  commanded  and  re- 
quired him  to  do  in  that  behalf,  and  such  furnishing  by  him  was, 
therefore,  a  compliance  with  and  an  obedience  of  the  positive  man- 
date of  the  statute,  rather  than  a  transgression  or  violation  of  its 
provisions  and  requirements,  and  was,  therefore,  not  unlawful.  The 
statute  having  made  the  furnishing  of  a  sample,  for  the  purpose  of 
analysis,  obligatory  and  compulsory,  a  furnishing  for  such  purpose 
is  not  a  crime,  and  cannot  rightfully  be  made  a  predicate  for  the  crim- 
inal prosecution  of  the  person  so  furnishing  said  sample. 
Mik.Cb.L.— 8 


114  THE   CRIMINAL   INTENT.  (Ch.  3 

SECTION  6.— CONCURRENCE  OF  SEVERAL  INTENTS, 
j 

REX  v.  WILLIAMS. 

(King's  Bench,  1795.     1  Leach,  529.) 

Mr.  Justice  Ashurst.1  Rhenwick  Williams,  the  prisoner  at  the 
bar,  was  tried  in  the  last  July  session  on  St.  6  Geo.  I,  c.  23.  And  the 
indictment  charged  that  he,  on  the  ISth  January,  1790,  at  the  parish 
of  St.  James,  in  a  certain  public  street  called  "St.  James'  Street,"  will- 
fully, maliciously,  and  feloniously  did  make  an  assault  on  Anne  Porter, 
<  spinster,  with  intent  willfully  and  maliciously  to  tear,  spoil,  cut,  and 
deface  her  garments,  and  that  he,  on  that  said  18th  of  January,  1790, 
in  the  parish  aforesaid,  etc.,  did  willfully,  maliciously,  and  felonious- 
ly tear,  spoil,  cut,  and  deface  her  silk  gown,  petticoat,  and  shift, 
being  part  of  the  wearing  apparel  which  she  then  had  and  wore  on 
her  person.  The  jury  found  the  prisoner  guilty;  but  the  judgment 
was  respited,  and  the  case  submitted  to  the  consideration  of  the  judges 
upon  three  questions. 

The  judges  are  of  opinion  that  the  case,  as  proved,  is  not  substan- 
tially within  the  meaning  of  the  act  of  Parliament.  This  statute  was 
passed  upon  a  particular  and  extraordinary  occasion.  Upon  the  in- 
troduction of  Indian  fashions  into  this  country,  the  silk  weavers,  con- 
ceiving that  it  would  be  detrimental  to  their  manufacture,  made  it  a 
practice  to  tear  and  destroy  the  clothes  and  garments  which  were  of 
a  different  commodity  from  that  which  they  wove,  and  to  prevent 
this  practice  St.  6  Geo.  I,  c.  23,  was  made.  To  bring  a  case,  there- 
fore, within  this  statute,  the  primary  intention  must  be  the  tearing, 
spoiling,  cutting,  or  defacing  of  the  clothes;  whereas,  in  the  present 
case,  the  primary  intention  of  the  prisoner  appears  to  have  been  the 
wounding  of  the  person  of  the  prosecutrix.  The  Legislature,  at  the 
time  they  passed  this  act,  did  not  look  forward  to  the  possibility  of  a 
crime  of  so  diabolical  a  nature  as  that  of  wounding  an  unoffending 
person  merely  for  the  sake  of  wounding  the  person,  without  having 
received  any  provocation  whatever  from  the  party  wounded.  But, 
*;ven  upon  the  supposition  that  it  was  possible  for  the  Legislature  to 
entertain  an  idea  of  such  an  offense,  it  is  clear  they  did  not  intend 
to  include  it  within  the  penalties  of  this  statute,  because,  if  they  had 
entertained  such  an  idea,  it  is  probable  they  would  have  annexed  to 
it  a  higher  punishment  than  this  statute  inflicts.  As  the  Legislature, 
therefore,  could  nol  have  framed  this  statute  to  meet  tins  offense,  it 
does  not  fall  within  the  province  of  those  who  are  to  expound  the 
laws  to  usurp  the  office  of  the  Legislature,  and  to  bring  an  offense 

■  Part  of  tiiis  case  is  <>iniif«'«i. 


SeC.  6)  CONCURRENCE   OF   SEVERAL   INTENTS.  115 

within  the  meaning  of  an  act  merely  because  it  is  enormous  and  de- 
serving of  the  highest  punishment.  But,  although  the  lash  of  the 
Legislature  does  not  reach  this  offense,  so  as  to  inflict  the  conse- 
quences of  felony  on  the  offender,  yet  the  wisdom  of  the  common 
law  opens  a  means  of  prosecution  by  indictment  for  the  misdemeanor, 
and,  on  conviction  of  the  offender,  arms  the  court  with  a  power  to 
punish  the  offense  in  a  way  that  may  force  him  to  repent  the  temerity 
of  so  flagrant  a  violation  of  the  rules  of  law,  the  precepts  of  social 
duty,  and  the  feelings  of  humanity.2 


U"Y°r  REX  v.  GILLOW. 

(Court  for  Crown  Cases  Reserved,  1825.     1  Moody,  85.)  nJ-   jhj^ . 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley, 
at  the  Lancaster  Lent  Assizes,  in  the  year  1825,  of  maliciously  shoot- 
ing at  Dennis  Carter,  with  intent  to  do  him  some  grievous  bodily 
harm.  It  appeared  that  the  prisoner  had  just  come  out  of  a  wood, 
armed  with  a  gun,  illegally  to  kill  game  there,  between  2  and  3  o'clock 
on  the  morning  of  the  2d  November,  1824.  He  was  skirting  the  wood 
to  kill  game  there,  when  three  keepers,  who  were  upon  the  watch 
for  poachers,  suddenly  sprung  up,  and  were  rushing  forward  to  seize 
him,  when  the  prisoner  fired  his  gun  at  one  of  the  keepers,  and  hit 
him  upon  the  lower  part  of  his  back  and  buttocks. 

The  wound  was  not  dangerous. 

The  jury  were  of  opinion  that  the  prisoner's  motive  was  to  prevent 
his  lawful  apprehension,  but  that  in  order  to  effect  that  purpose  he 
had  also  the  intention  of  doing  to  Carter  some  grievous  bodily  harm. 

It  was  objected  that,  the  act  having  specified  the  intent  to  prevent 
lawful  apprehension,  as  one  of  the  intents  made  essential  to  consti- 

2  It  seems  that  Mr.  Justice  Buller,  at  the  subsequent  consultation  of  the 
judges,  retained  the  opinion  he  had  given  to  the  jury,  viz.,  that  the  case 
came  within  the  statute,  because  the  jury,  whose  sole  province  it  was  to  find 
the  intent,  had  expressly  found  that  the  intent  of  the  prisoner  was  to  wound 
the  party  by  cutting  through  her  clothes,  and  therefore  that  he  must  have 
intended  to  cut  her  clothes;  and  for  this  opinion  he  relied  upon  the  Case 
of  Cook  and  Woodburn,  upon  St.  22  &  23  Car.  II,  c.  1,  commonly  called  the 
"Coventry  Act,"  charging  them  in  the  words  of  the  act  with  an  intention  to 
maim  a  Mr.  Crisp.  The  fact  of  maiming  was  clearly  proved,  but  the  defend- 
ants insisted  that  their  intention  was  to  murder  him,  and  not  to  maim  him. 
and  therefore  that  they  were  not  within  the  statute.  But  Lord  King  said 
that  the  intention  was  a  matter  of  fact  to  be  collected  from  the  circumstan- 
ces of  the  case,  and  as  such  was  proper  to  be  left  to  the  jury,  and  that,  if  it 
was  the  intent  of  the  prisoners  to  murder,  it  was  to  be  considered  whether 
the  means  made  use  of  to  accomplish  that  end  and  the  consequences  of  those 
means  were  not  likewise  in  their  intention  and  design;  and  the  jury  found 
them  guilty  and  they  were  executed.  But  it  seems  that  upon  a  subsequent  oc- 
casion Willes,  J.,  and  Eyre,  B.,  expressed  some  dissatisfaction  with  this  de- 
termination, and  thought,  at  least,  that  the  construction  ought  not  to  be  car- 
ried further.  1  East,  400.  424.  See  People  v.  Cotteral.  18  Johns.  (N.  Y.)  115 
(1820). 


116  THE    CRIMINAL   INTENT.  (Ch.  3 

tute  the  offense,  and  that  being  the  main  and  principal  intent  in  this 
case,  the  indictment  should  have  charged  that  as  the  intent.  The 
learned  judge  was  of  opinion  that,  if  both  intents  existed,  the  ques- 
tion which  was  the  principal  and  which  was  the  subordinate  inten- 
tion was  immaterial;  but,  though  the  learned  judge  did  not  reserve 
the  point,  he  thought  it  right  to  submit  the  case  to  the  consideration 
of  the  judges.  In  Easter  term,  1825,  the  judges  (Best,  L.  C.  J.,  and 
Littledale,  J.,  absent)  met  and  considered  this  case,  and  held  that, 
if  both  intents  existed,  it  was  immaterial  which  was  the  principal  and 
which  the  subordinate  one,  and  that  the  conviction  was  therefore 
proper.1 

i  Accord:  Rex  v.  Shadbolt,  5  Car.  &  P.  504  (1S33) ;  State  v.  Mitchell.  27 
N.  C.  350  (1S45) ;  People  v.  Carmichael,  5  Mich.  10,  71  Am.  Dec.  769  (185S) ; 
State  v.  Clark,  69  Iowa,  196,  28  N.  W.  537  (1S86). 


NEGLIGENCE   AS   SUPPLYING    INTENT  117 

CHAPTER  IV. 
NEGLIGENCE  AS  SUPPLYING  INTENT. 


Touching  the  sin  of  homicide,  appeals  are  made  thus:  Knotting, 
who  is  here,  appeals  Carling,  who  is  there,  for  that  whereas  Cadi, 
the  father  (brother,  son,  or  uncle)  of  this  Knotting  *  *  *  was 
struck  on  such  a  part  of  his  body  by  a  curable  stroke  (or  had  such  a 
curable  disease  or  wound),  for  the  cure  whereof  he  had  placed  him- 
self under  this  Carling,  who  professed  himself  a  master  of  medical 
practice,  there  came  this  Carling,  and  undertook  the  case,  and  bv 
his  folly  and  negligence,  etc.,  feloniously  slew  him.  Or  thus :  with- 
drew sustenance  from  him,  whereby  on  such  a  day,  etc.,  he  slew  him. 
Or  thus:  so  long  delayed  his  delivery  [from  prison]  that  thereby  he 
slew  him. 

Mirror  of  Justices  (Sel.  Soc.)  c.  15. 


HULL'S  CASE. 

(Old  Bailey,  1664.     Kelyng,  40.) 

In  the  Sessions  in  the  Old  Bailey  holden  the  13th  of  January,  166-1, 
one  John  Hull  was  indicted  for  the  murder  of  Henry  Cambridge, 
and  upon  the  evidence,  the  case  was,  that  there  were  several .  work- 
men about  building  of  a  house  by  the  Horse  Ferry,  which  house 
stood  about  thirty  feet  from  any  highway  or  common  passage,  and 
Hull  being  a  master  workman  (about  evening  when  the  master  work- 
man had  given  over  work,  and  when  the  laborers  were  putting  up 
their  tools),  was  sent  by  his  master  to  bring  from  the  house  a  piece 
of  timber  which  lay  two  stories  high,  and  he  went  up  for  that  piece 
of  timber,  and  before  he  threw  it  down,  he  cried  out  aloud,  stand 
clear,  and  was  heard  by  the  laborers,  and  all  of  them  went  from  the 
danger  but  only  Cambridge,  and  the  piece  of  timber  fell  upon  him 
and  killed  him ;  and  my  Lord  Chief  Justice  Hyde  held  this  to  be  man- 
slaughter, for  he  said  he  should  have  let  it  down  by  a  rope,  or  else 
at  his  peril,  be  sure  nobody  is  there;  but  my  Brother  Wylde  and 
myself  held  it  to  be  misadventure,  he  doing  nothing  but  what  is  usual 
for  workmen  to  do;  and  before  he  did  it,  crying  out  aloud,  stand 
clear,  and  so  gave  notice  if  there  were  any  near  they  might  avoid 
it ;  and  we  put  the  case ;  a  man  lopping  a  tree,  and  when  the  arms 
of  the  tree  were  ready  to  fall,  calls  out  to  them  below,  take  heed, 


118  NEGLIGENCE    AS    SUPPLYING   INTENT.  (Ch.  4 

and  then  the  arms  of  the  tree  fall  and  kill  a  man,  this  is  misadventure ; 
and  we  showed  him  Poulton  de  pace  120,  where  the  case  is  put,  and 
the  book  cited,  and  held  to  be  misadventure;  and  we  said  this  case 
in  question  is  much  stronger  than  the  case  where  one  throws  a  stone 
or  shoots  an  arrow  over  the  wall  or  house,  with  which  one  is  slain, 
this  in  Kelloway  108  and  136,  is  said  to  be  misadventure.  But  we 
did  all  hold  that  there  was  a  great  difference  betwixt  the  case  in  ques- 
tion, the  house  from  which  the  timber  was  thrown  standing  thirty 
foot  from  the  highway  or  common  footpath,  and  the  doing  the  same 
act  in  the  streets  of  London;  for  we  all  agreed,  that  in  London, 
that  if  one  be  a  cleansing  of  a  gutter,  called  out  to  stand  aside,  and 
then  throw  down  rubbish,  or  a  piece  of  timber,  by  which  a  man  is 
killed,  this  is  manslaughter;  being  in  London,  there  is  a  continual 
concourse  of  people  passing  up  and  down  the  streets,  and  a  new 
passenger,  who  did  not  hear  him  call  out,  and  therefore  the  casting- 
down  any  such  thing  from  a  house  into  the  streets,  is  like  the  case 
where  a  man  shoots  an  arrow  or  gun  into  a  market-place  full  of  peo- 
ple, if  any  one  be  killed  it  is  manslaughter;  because  in  common  pre- 
sumption his  intention  was  to  do  mischief,  when  he  casts  or  shoots 
any  thing  which  may  kill  among  a  multitude  of  people;  but  in  case 
that  an  house  standing  in  a  country  town  where  there  is  no  such 
frequency  of  passengers,  if  a  man  call  out  there  to  stand  aside,  and 
take  heed,  and  then  cast  down  the  filth  of  a  gutter,  etc.,  my  Brother 
Wylde  and  I  held  that  a  far  different  case  from  doing  the  same  thing 
in  London.  And  because  my  Lord  Hyde  differed  in  the  principal 
case,  it  was  found  specially,  but  I  take  the  law  to  be  clear,  that  it  is 
but  misadventure. 


REX  v.  BURTON. 

(King's  Bench,   1721.     1   Strange,  481.) 

The  defendant  came  to  town  in  a  chaise,  and  before  he  got  out 
of  it  he  fired  his  pistols,  which  by  accident  killed  a  woman;  and 
King,  C.  J.  de  C.  B.,  ruled  it  to  be  but  manslaughter. 


KNIGHT'S  CASE. 

(Lancaster  Assizes,  1 8128.    1  Lewin,  C.  C.  168.) 

Prisoner  was  indicted  for  manslaughter.  The  evidence  was  that, 
being  employed  to  drive  a  cart,  he  sat  in  the  inside  instead  of  attend- 
ing at  the  horse's  head,  and  while  he  was  there  sitting  the  cart  went 
over  a  child  who  was  gathering  up  (lowers  in  the  road. 


NEGLIGENCE   AS    SUPPLYING    INTENT.  119 

Per  BaylEY,  J.  "The  prisoner,  by  being  in  the  cart  instead  of  at 
the  horse's  head,  or  by  its  side,  was  guilty  of  negligence;  and,  death 
having  been  caused  by  such  negligence,  he  is  guilty  of  manslaughter." 

Note. — A  similar  case  occurred  before  Hullock,  B.,  at  the  York  Spring 
Assizes,  1829,  and  a  similar  judgment  was  delivered. 


RIGMAIDON'S  CASE. 
(Lancaster  Assizes,  1833.     1  Lewin,  C.  O.  180.) 

Prisoner,  a  wine  merchant  at  Liverpool,  was  indicted  for  man- 
slaughter, in  having,  by  negligence  in  the  manner  of  slinging  a  cask 
or  puncheon,  caused  the  same  to  fall  and  kill  two  females  who  were 
passing  along  the  causeway.  It  appeared  in  evidence  that  there  were 
three  modes  of  slinging  casks  customary  in  Liverpool :  One  by  slings 
passed  round  each  end  of  the  cask ;  a  second,  by  can-hooks ;  and  a 
third,  in  the  manner  in  which  the  prisoner  had  slung  the  cask,  which 
caused  the  accident,  viz.,  by  a  single  rope  round  the  center  of  the  cask. 

The  cask  was  hoisted  up  to  the  fourth  story  of  a  warehouse,  and 
on  being  pulled  endways  towards  the  door  it  slipped  from  the  rope 
as  soon  as  it  touched  the  floor  of  the  room. 

Per  Parke,  J.,  to  the  jury:  "The  double  slings  were  undoubtedly 
the  safest  mode ;  but  if  you  think  the  mode  which  the  prisoner  adopt- 
edpvTzTTthat  of  a  single  rope,  was  reasonably  sufficient,  you  cannot 
convict  him." 

Prisoner  was  convicted,  and  sentenced  to  a  month's  imprisonment.1 


STATE  v.  HARDIE. 

(Supreme  Court  of  Iowa,  1878.    47  Iowa,  647,  26  Am.  Rep.  496.) 

The  defendant  was  indicted  for  murder  in  the  second  degree.  He 
was  convicted  of  the  crime  of  manslaughter,  and  sentenced  to  the 
penitentiary  for  one  year.    The  facts  of  the  case  appear  in  the  opinion. 

Rothrock,  C.  J.2  It  appears  from  the  evidence  that  the  defend- 
ant was  a  boarder  in  the  family  of  one  Gantz,  who  is  his  brother-in- 
law.  On  the  day  of  the  homicide  defendant  was  engaged  in  varnish- 
ing furniture.  Mrs.  Sutfen,  a  neighbor,  called  at  the  house,  and  after 
some  friendly  conversation  she  went  into  the  kitchen.  When  she 
came  back,  defendant  picked  up  a  tack  hammer  and  struck  on  the 
door.  She  said,  "My  God,  I  thought  it  was  a  revolver."  A  short 
time  afterwards  she  went  into  the  yard  to  get  a  kitten.  Defendant 
said  he  would  frighten  her  with  the  revolver  as  she  came  in.    He  took 

i  Compare  Reg.  v.  Finney,  12  Cox,  C.  C.  625  (1874). 
2  Part  of  the  opinion  is  omitted. 


120  NEGLIGENCE    AS   SUPPLYING   INTENT.  (Cll.  4 

a  revolver  from  a  stand  drawer  and  went  out  of  the  room,  and  was 
in  the  kitchen  when  the  revolver  was  discharged.  He  immediately 
came  in  and  said  to  Mrs.  Gantz,  his  sister,  "My  God,  Hannah,  come 
and  see  what  I  have  done."  His  sister  went  out  and  found  Mrs.  Sut- 
fen  lying  on  the  sidewalk  at  the  side  of  the  house,  with  a  gunshot 
wound  in  the  head,  and  in  a  dying  condition. 

The  revolver  had  been  in  the  house  about  five  years.  It  was  found 
by  Gantz  in  the  road.  There  was  one  load  in  it  when  found.  Some 
six  months  after  it  was  found  Gantz  tried  to  shoot  the  load  from  it, 
and  it  would  not  go  off.  He  tried  to  punch  the  load  out,  but  could 
not  move  it.  He  then  laid  it  away,  thinking  it  was  harmless.  The 
defendant  was  about  the  house  and  knew  the  condition  of  the  re- 
volver. Upon  one  occasion  Gantz  said  he  would  try  to  kill  a  cat  with 
the  revolver.  Defendant,  being  present,  said  he  would  not  be  afraid  to 
allow  it  to  be  snapped  at  him  all  day.  The  revolver  remained  in  the 
same  condition  that  it  was  when  found,  no  other  load  having  been  put 
into  it,  and  it  was  considered  by  the  family,  as  well  as  defendant,  as 
entirely  harmless. 

That  the  revolver  was  in  fact  a  deadly  weapon  is  conclusively  shown 
by  the  terrible  tragedy  consequent  upon  defendant's  act  in  firing- 
it  off.  If  it  had  been  in  fact  unloaded,  no  homicide  would  have  re- 
sulted; but  the  defendant  would  have  been  justly  censurable  for  a 
most  reckless  and  imprudent  act  in  frightening  a  woman  by  pre- 
tending that  it  was  loaded,  and  that  he  was  about  to  discharge  it 
at  her.  No  jury  would  be  warranted  in  finding  that  men  of  ordinary 
prudence  so  conduct  themselves.  On  the  contrary,  such  conduct  is 
grossly  reckless  and  reprehensible,  and  without  palliation  or  excuse. 
Human  life  is  not  to  be  sported  with  by  the  use  of  firearms,  even 
though  the  person  using  them  may  have  good  reason  to  believe  that 
the  weapon  used  is  not  loaded,  or  that,  being  loaded,  it  will  do  no 
injury.  When  persons  engage  in  such  reckless  sport,  they  should  be 
held  liable  for  the  consequences  of  their  acts. 

Affirmed.2 


STATE  v.  O'BRIEN. 

(Supreme  Court  of  New  Jersey,  18G7.    32  N.  J.  Law,  ICO.) 

DalRIMPLE,  J.3  On  the  15th  day  of  November,  1865,  the  defend- 
ant was  a  switch  tender  in  the  employ  of  the  New  Jersey  Railroad 
&  Transportation  Company.  His  duty  was  to  adjust,  and  keep  ad- 
justed, the  switches  of  the  road  at  a  certain  point  in  the  city  of  New- 
ark, so  that  passenger  trains  running  over  the  road  would  continue 

*  For  responsibility  Cox  negligence  in  die  maintenance  of  dangerous  animals, 
Bee  Beg.  v.  Dant,  Leigb  «v  C.  567  (1SG5). 
Part  <>f  tiiis;  case  is  omitted. 


NEGLIGENCE   A8   SUPPLYING    INTENT.  121 

on  the  main  track  thereof,  and  pass  thence  to  the  city  of  Elizabeth. 
He  failed  to  perform  such  duty,  whereby  a  passenger  train  of  cars, 
drawn  b\  a  locomotive  engine,  was  unavoidably  diverted  from  the 
main  track  to  a  side  track,  and  thence  thrown  upon  the  ground.  The 
cars  were  thrown  upon  each  other  with  great  force  and  violence,  by 
means  whereof  one  Henry  Gardner,  a  passenger  upon  the  train,  was  so 
injured  that  he  died.  The  defendant  was  indicted  for  manslaughter, 
and  convicted  upon  trial  in  the  Essex  oyer  and  terminer.  He  insisted, 
and  in  different  forms  asked  the  court  to  charge  the  jury,  that  he 
could  not  legally  be  convicted  unless  his  will  concurred  in  his  omission 
of  duty.  The  court  refused  so  to  charge.  A  rule  to  show  cause  why 
Hie  verdict  should  not  be  set  aside  was  granted,  and  the  case  certified 
into  this  court  for  its  advisory  opinion,  as  to  whether  there  was  any 
error  in  the  charge  of  the  court  below,  or  in  the  refusal  to  charge  as  re- 
quested. 

The  indictment  was  for  the  crime  of  manslaughter.  If  the  defend- 
ant's omission  of  duty  was  willful,  or,  in  other  words,  if  his  will  con- 
curred in  his  negligence,  he  was  guilty  of  murder.  Intent  to  take 
life,  whether  by  an  act  of  omission  or  commission,  distinguishes  mur- 
der from  manslaughter.  In  order  to  make  out  against  the  defend- 
ant the  lesser  offense  of  manslaughter, .  it  was  not  necessary  that  it 
should  appear  that  the  act  of  omission  was  willful  or  of  purpose.  The 
court  was  right  in  its  refusal  to  charge,  as  requested. 

The  only  other  question  is  whether  there  is  error  in  the  charge  de- 
livered. The  error  complained  of  is  that  the  jury  were  instructed 
that  a  mere  act  of  omission  might  be  so  criminal  or  culpable  as  to 
be  the  subject  of  an  indictment  for  manslaughter.  Such,  we  believe, 
is  the  prevailing  current  of  authority.  Prof.  Greenleaf,  in  the  third 
volume  of  his  work  on  Evidence  (section  129),  in  treating  of  homicide, 
says :  "It  may  be  laid  down  that,  where  one  by  his  negligence  has  con- 
tributed to  the  death  of  another,  he  is  responsible.  The  caution  which 
the  law  requires  in  all  these  cases  is  not  the  utmost  degree  which  can 
possibly  be  used,  but  such  reasonable  care  as  is  used  in  the  like  cases, 
and  has  been  found,  by  long  experience,  to  answer  the  end."  Whar- 
ton, in  his  Treatise  on  Criminal  Law  (page  382),  says:  "There  are 
many  cases  in  which  death  is  the  result  of  an  occurrence  in  itself 
unexpected,  but  which  arose  from  negligence  or  inattention.  How  far 
in  such  cases  the  agent  of  such  misfortune  is  to  be  held  responsible 
depends  upon  the  inquiry  whether  he  was  guilty  of  gross  negligence 
at  the  time.  Inferences  of_guilt  are_not  to_be  draw_n_  from  remole 
causes,  and  the  degree  of  caution  requisite  to  bring  the  case  within 
the  limits  of  misadventure  must  be  proportioned  to_  the  probability 
of  danger  attending  the  act  immediately  conducive  to  the  death."  The 
propositions,  so'well  stated  by  the  eminent  writers  referred  to,  we 
believe  to  be  entirely  sound,  and  are  applicable  to  the  case  before  us. 
The  charge,  in  the  respect  complained  of,  was  in  accordance  with 
them.     It  expressly  states  that  it  was  a  question  of  fact,  for  the  jur>' 


122  NEGLIGENCE   AS   SUPPLYING   INTENT.  (Ch.  4 

to  settle,  whether  the  defendant  was  or  was  not  guilty  of  negligence ; 
whether  his  conduct  evinced  under  the  circumstances  such  care  and 
diligence  as  were  proportionate  to  the  danger  to  life  impending.  The 
<very  definition  of  crime  is  an  act  omitted  or  committed  in  violation 
joi-public  law.  The  defendant  in  this  case  omitted  his  duty  under  such 
circumstances  as  amounted  to  gross  or  culpable  or  criminal  negligence. 
The  court  charged  the  jury  that  if  the  defendant,  at  the  time  of  the  ac- 
cident, was  intending  to  do  his  duty,  but  in  a  moment  of  forgetful- 
ness  omitted  something  which  any  one  of  reasonable  care  would  be 
likely  to  omit,  he  was  not  guilty.  The  verdict  of  guilty  finds  the 
question,  in  fact,  involved  in  this  proposition  against  the  defendant, 
and  convicts  him  of  gross  negligence.  He  owed  a  personal  duty  not 
only  to  his  employers,  but  to  the  public.  He  was  found  to  have  been 
grossly  negligent  in  the  performance  of  that  duty,  whereby  human 
life  was  sacrificed.  His  conviction  was  right,  and  the  court  below 
should  be  so  advised.2 


REGINA  v.  MACLEOD. 

(Court  of  Criminal  Appeal,  1874.     12  Cox,  C.  C.  534.) 

Alexander  Macleod  was  charged  with  the  manslaughter  of  his 
wife,  Annie  Macleod,  at  Carlisle,  on  the  15th  of  October,  1873. 

The  case  against  the  prisoner  was  that  of  having  unlawfully  killed 
his  wife  by  having  administered  to  her  a  large  quantity  of  a  certain 
drug  called  muriate  of  morphia.  From  the  evidence  it  appeared  the 
prisoner,  who  had  been  for  about  twenty  or  thirty  years  a  surgeon 
on  the  medical  staff  of  the  Madras  army  in  India,  came  over  to  live 
in  England,  about  a  year  and  a  half  or  two  years  ago,  and  shortly 
after  came  to  Carlisle,  and  brought  with  him  the  deceased  woman,  his 
wife.  For  a  short  time  before  the  15th  of  October,  while  the  prison- 
er and  his  wife  were  living  together  in  Chiswick  street,  Carlisle,  one 
of  their  children,  who  was  about  six  years  of  age,  became  ill  of  ty- 
phoid fever,  and  for  a  fortnight  before  that  the  deceased  woman  had 

2  Accord:  Reg.  v.  Pargeter,  3  Cox,  C.  C.  1901  (1848);  Reg.  v.  Hughes, 
7  Cox,  C.  C.  301  (1857) ;  cf.  Rex  v.  Green,  7  Car.  &  P.  15G  (183r>).  See,  also, 
D.  S.  v.  Knowles,  4  Sawy.  (U.  S.)  517,  Fed.  Cas.  No.  15,540  (18G4);  Thomas 
v.  People,  2  Colo.  App.  513,  81  Pac.  349  (1892). 

"If  the  prisoner  is  and  has  been  afflicted  in  the  manner  claimed  [with 
somnambulism],  and  knew,  as  he  no  doubt  did,  his  propensity  to  do  acts  of 
violence  when  aroused  Groin  Bleep,  he  was  guilty  of  a  grave  breach  of  social 
duty  in  going  to  sleep  In  the  public  room  of  a  hotel  with  a  deadly  weapon 
•  iii  his  person,  and  merits,  for  thai  reckless  disregard  of  the  safety  of  others, 
iome  degree  of  punishment ;  but  we  kuow  of  no  law  under  which  he  ran  be 
punished.  Our  law  only  punishes  for  overt  -acts  done  by  responsible  moral 
agents,  if  the  prisoner  was  unconscious  when  be  killed  the  deceased,  he 
cannot  be  punished  for  thai  act,  and,  as  the  mere  fad  thai  lie  had  a  weapon 
on  bis  person  and  wenl  to  Bleep  With  it  there  did  no  injury  to  any  one,  he 
cannol  be  punished  for  that"  Cofer,  J.,  in  Fain  v.  Commonwealth,  78  Ky. 
188,  89  Am.  Rep.  218  (1879). 


If 


NEGLIGENCE    AS    SUPPLYING   INTENT.  123 

been  in  a  bad  and  weak  state  of  health.  That  indisposition  was  mater- 
ially increased  by  having  to  attend  to  her  sick  child,  which  she  had 
done  most  assiduously,  and  for  several  days  previous  to  the  15th  of 
October  she  appeared  never  to  have  obtained  good  rest.  In  the  mid- 
dle of  that  day — the  loth  of  October — she  appeared  very  unwell  in- 
deed, and  the  prisoner,  finding  she  had  not  obtained  any  proper  rest, 
determined  to  give  her  an  opiate.  At  4  p.  m.  he  went  to  Mr.  Todd, 
a  chemist  in  the  town,  and  there  obtained  in  a  bottle  20  grains  of  mor- 
phia, and  paid  eightpence  for  it,  that  being  the  price  of  that  quantity 
to  a  medical  man.  The  prisoner  went  home,  gave  his  wife  1  grain, 
after  weighing  it,  and  repeated  other  doses  without  weighing  them ; 
altogether  he  administered  something  like  16y2  grains  before  7  o'clock 
that  evening,  in  about  3  or  2>y2  hours.  About  6  :30  the  prisoner  went 
for  Dr.  Walker,  and  told  him  his  wife  had  taken  too  much  morphia, 
and  as  they  were  proceeding  from  Dr.  Walker's  house  to  the  pris- 
oner's they  had  a  conversation  in  which  the  prisoner  stated  that  he 
had  given  her  repeated  doses  of  morphia,  that  he  had  given  her  one 
grain  as  a  first  dose,  which  he  had  weighed,  but  that  in  repeating 
the  doses  he  had  not  weighed  them,  but  guessed  the  quantity.  Dr. 
Walker,  on  his  arrival,  found  the  poor  woman  lying  on  the  hearth 
rug  in  front  of  the  fire,  suffering  from  pain,  and  apparently  uncon- 
scious. Dr.  Walker  tried  various  means  of  restoring  her.  At  20 
minutes  before  9  o'clock  Dr.  Maclaren  was  called  in,  and  he  injected 
atropine  as  an  antidote.  The  deceased  was  then  in  a  state  almost 
comatose,  and  it  was  found  impossible  to  rouse  her.  She  died  at 
10  o'clock,  having  all  the  symptoms  of  death  by  morphia.  Under 
these  circumstances  it  was  submitted  by  the  prosecution  that  the 
conduct  of  the  prisoner  had  been  so  heedless  and  reckless  in  giving 
such  large  doses  of  morphia  that  he  was  criminally  liable,  and  was 
guilty  of  the  offense  of  manslaughter.1 

D^nman,  J.,  in  summing  up  the  case  to  the  jury,  said  the  law  was 
this:  Whether  a  man  be  a  medical  man  or  not,  if  he  dealt  with  dan- 
gerous medicines,  he  was  bound  to  use  them  with  proper  skill,  and 
was  bound  to  bring  proper  care,  and  employ  proper  caution,  so  that 
persons  should  not  be  endangered  by  want  of  skill  on  his  part,  or 
want  of  caution  or  care  in  dealing  with  those  deadly  ingredients. 
Whether  it  be  deadly  weapons,  or  drugs,  the  law  was  the  same,  and 
it  made  no  difference  whether  a  medical  man  was  dealing  with  a  pa- 
tient, or,  as  a  volunteer,  dealing  with  his  friend  or  his  wife.  The  jury 
might  be  enlightened  by  looking  at  the  relations  between  the  parties, 
and  he  was  by  no  means  prepared  to  say  that,  in  judging  of  the  evi- 
dence, it  would  not  enlighten  them  very  much,  and  enable  them  to 
appreciate  the  evidence  on  the  main  point,  whether  the  man  did  not 
do  his  best,  not  in  the  sense  of  doing  a  bad  best — but  doing  a  good 
best;   he  being  a  medical  man,  and  therefore  likely  to  know  whether 

i  Part  of  this  case  is  omitted. 


124  NEGLIGENXE   AS   SUPPLYING    INTENT.  (Ch.  4 

a  drug  was  likely  to  be  dangerous  in  the  quantity  administered  or  in- 
nocuous. There  was  ample  evidence  that  the  death  of  the  deceased 
was  caused  by  morphia.  There  was  great  difference  of  opinion  as 
to  the  quantity  of  the  drug  which  could  be  administered  safely.  How- 
ever, if  the  jury  were  satisfied  that  the  death  was  caused  by  morphia, 
and  if  it  was  administered  without  proper  care,  skill,  and  caution,  and 
without  a  proper  knowledge  of  morphia  by  the  prisoner,  whether  in 
the  weighing  of  the  drug,  or  in  any  other  way,  that  would  be  clear 
negligence — he  would  not  use  the  term  "gross  negligence,"  because 
it  was  liable  to  misinterpretation — and,  if  that  was  so,  the  prisoner 
would  be  guilty  of  manslaughter.  But  if  the  drug  was  administered 
without  want  of  skill,  and  intending  to  do  for  the  best — doing  noth- 
ing, in  fact,  a  skillful  man  might  not  do — then,  if  the  jury  merely 
thought  it  was  some  error  of  judgment,  which  anybody  might  have 
committed,  the  prisoner  should  be  acquitted. 
Not  guilty.2 


WESTRUP  v.  COMMONWEALTH. 


(Supreme  Court  of  Kentucky,  1906.     29  Ky.  Law  Rep.  519,  93  S.  W.  646,  J>^ 
ft-C  L.  R.  A.  [N.   S.]  685.) 

Appeal  by  defendant  from  a  judgment  of  the  circuit  court  for 
Campbell  county  convicting  him  of  manslaughter.  Reversed.  The 
facts  are  stated  in  the  opinion. 

Settle,  J.,  delivered  the  opinion  of  the  court.  The  appellant  was 
indicted  by  the  grand  jury  of  Campbell  county,  and  tried  in  the  cir- 
cuit court  of  that  county,  for  involuntary  manslaughter,  alleged  to 
have  been  committed  by  willfully  neglecting  to  furnish  his  wife,  then 
pregnant  and  about  to  be  delivered  of  a  child,  with  such  care  and 
attention  as  were  necessary  during  her  confinement  in  childbirth,  there- 
by causing  her  death.  Upon  the  trial  the  jury  found  appellant  guilty 
as  charged,  and  fixed  his  punishment  at  imprisonment  in  the  county 
jail  eight  months,  in  conformity  to  which  judgment  was  duly  entered.8 

According  to  the  evidence,  appellant's  wife,  Florence  Westrup, 
died  February  27,  1905,  about  two  hours  after  giving  birth  to  a 
child.  She  and  appellant  were  married  in  Chicago  in  the  year  1000, 
but  had  been  living  in  Newport  but  a  few  months  before  her  death, 
and  had  formed  very  few  acquaintances  there.  They  were  an  affect- 
ionate couple,  though  both  were  reserved  in  disposition  and  positive 
in  their  belli  i  .  He  is  an  artist,  and  previous  to  his  wife's  death  was 
at  work  for  the  Donaldson  Lithographing  Company,  earning  $20 
per  week,  and  his  wages,  when  received  by  him,  were  delivered  to 
hi  ■  wife  for  safe-keeping  and  use  in  their  joint  support.     They  were 

■  Accord:    Btate  v.  Hardlster,  88  Ark.  805,  -12  Am.  Rep.  5  (1882);    Oom- 
monwealtb  v.  Pierce,  188  Blase,  166,  52  Am.  Rep.  284  (1884). 
3  Part  of  the  opinion  Ii  omitted. 


I 

NEGLIGENCE   AS   SUPPLYING    INTENT.  L25 

housekeeping  in  rented  rooms  of  a  house  which  was  in  part  occupied 
by  other  renters,  and  the  household  work  was  done  by  the  wife,  with 
such  assistance  as  the  husband  would  take  time  from  his  own  work 
to  give  her.  The  evidence  further  showed  that  the  wife  became  preg- 
nant, and  was  of  opinion  that  her  child  would  be  born  the  4th  of 
March,  1905 ;  that  she  was  a  woman  of  unusual  intelligence,  and, 
though  never  before  with  child,  had  some  peculiar  ideas  as  to  the 
care  to  be  taken  of  herself  during  pregnancy  and  of  the  child  after 
Its  birth,  in  which  her  husband  seems  to  have  shared;  that  she  was 
a  strong  believer  in  the  laws  of  nature,  and  read  many  books  on 
that  subject  and  medicine,  among  which  was  one  called  "Tokology,* 
written  by  Dr.  Stockham,  a  female  physician,  of  Chicago,  with  whom 
she  corresponded  before  the  birth  of  her  child;  that,  as  a  result  of 
her  reading  and  correspondence  with  the  female  doctor,  appellant's 
wife  conceived  a  great  aversion  to  physicians,  and  contended  that 
they  were  too  ready  to  resort  in  cases  of  childbirth  to  the  use  of  in- 
struments, which  often  resulted  in  death  or  injury  to  both  mother  and 
child,  and  declared  her  purpose  to  do  without  the  services  of  one  at 
the  birth  of  her  child.  Adhering  to  this  view,  she  by  letter  requested 
a  sister  of  her  husband,  living  in  another  state,  to  be  with  her  in  her 
confinement,  naming  March  4th  as  the  date,  and  the  sister  promised 
to  do  so,  and,  without  knowing  of  the  illness  of  the  appellant's  wife, 
did  in  fact  reach  Newport  on  the  day  of  and  a  few  hours  after  her 
death.  It  also  appeared  from  the  evidence  that  appellant's  wife  was 
seized  with  labor  pains  early  in  the  morning  of  the  day  on  which  she 
died;  but,  as  she  had  previously  suffered  what  appeared  to  be  similar 
pains,  which  soon  passed  away,  she  and  appellant  remained,  until 
shortly  before  the  birth  of  the  child,  in  the  belief  that  she  would  not 
be  confined  before  March  4th,  five  days  later  than  the  one  on  which 
she  died.  But,  contrary  to  their  expectations,  the  birth  of  the  child 
occurred  between  1  and  3  p.  m.  of  that  day,  February  27,  1905,  and, 
though  for  a  short  while  thereafter  the  mother  seemed  to  be  doing 
well,  about  4  o'clock  she  became  worse,  alarmed  at  which  appellant 
called  in  two  women  residing  in  the  same  house,  and,  upon  being  ad- 
vised by  one  of  them  that  a  physician  should  be  summoned,  he  im- 
mediately sent  for  one,  who  upon  reaching  the  wife's  bedside  attempt- 
ed to  give  her  some  medicine,  which  she  refused  to  take.  The  doc- 
tor, by  appellant's  direction,  and  notwithstanding  the  patient's  objec- 
tion, then  made  an  examination  of  her  person,  and  discovered  that  she 
had  not  been  relieved  of  the  afterbirth,  which  he  attempted  to  remove; 
but,  finding  that  it  could  not  be  done  without  his  instruments,  he 
went  to  his  office  for  them,  and  upon  his  return  to  appellant's  residence 
found  that  the  patient  had  died  during  his  absence  of  post  partum 
hemorrhage,  which,  according  to  the  testimony  of  the  medical  expert 
introduced  in  behalf  of  the  commonwealth,  sometimes  follows  child- 
birth, is  nearly  always  fatal,  and  may  be  produced  from  many  causes, 
such  as  retention  of  the  afterbirth,  laceration,  weakness  from  disease, 


126  NEGLIGENCE   AS   SUPPLYING   INTENT.  (Cll.  4 

unhygienic  surroundings,  or  other  causes.  It  does  not  appear  from 
the  evidence  what  caused  the  hemorrhage  in  this  instance,  as  there 
was  no  post  mortem  examination  held. 

It  is  manifest  from  the  evidence  that  the  confinement  of  appellant's 
wife  came  five  days  sooner  than  they  expected  it;  that  she  had  re- 
solved to  do  without  the  services  of  a  physician  in  her  confinement, 
and  had  influenced  appellant  to  adopt  her  opinion  that  the  services 
of  a  physician  would  be  unnecessary  at  such  a  time;  that  during  her 
labor  he  dutifully  remained  with  her,  and  assisted  her  to  the  best  of 
his  ability,  and  as  she  directed  him ;  that  when  he  discovered  her  peril 
he  called  in  two  women  living  in  the  same  house  to  assist  him  in  caring 
for  both  mother  and  babe;  that  upon  the  suggestion  of  one  of  them 
he  immediately,  and  over  his  wife's  objection,  sent  for  a  competent 
physician  to  minister  to  her;  and  that  the  latter,  in  spite  of  her  pro- 
testations, apparently  did  what  he  could,  and  all  she  would  allow  him 
to  do,  to  relieve  her,  but  failed  to  preserve  her  life.  In  view  of  the 
foregoing  facts,  and  the  further  facts  that  appellant  was  an  affection- 
ate husband,  and  had  never  appeared  indifferent  to  his  wife  or  neglect- 
ful of  any  conjugal  duty,  and  that  in  failing  to  earlier  call  in  a  phy- 
sician he  acted  in  good  faith  and  at  her  request,  though  he  doubtless 
erred  in  so  doing,  we  fail  to  find  any  just  or  reasonable  ground  for 
the  verdict  of  the  jury;  indeed,  we  think  it  wholly  without  support 
from  the  evidence.  It  is  manifest  that  the  prosecution  was  bottomed 
upon  the  failure  of  appellant  to  earlier  provide  his  wife  with  a  phy- 
sician. Those  of  us  who  reverence  the  medical  profession  and  im- 
plicitly trust  the  learning  and  skill  of  the  family  physician  may  be  dis- 
posed to  attribute  to  ignorance  or  prejudice  such  a  lack  of  confidence 
in  that  profession  as  was  manifested  by  the  appellant's  wife,  and 
wonder  that  he,  in  the  face  of  such  a  crisis  as  confronted  them,  should 
have  allowed  himself  to  be  influenced  to  trust  to  nature's  laws,  or 
supernatural  aid,  rather  than  medical  skill ;  but  the  fact  remains  that 
there  are  many  who  reject,  as  they  did,  both  medicine  and  surgery 
for  other  means,  or  supposed  means,  of  healing,  and  are  perfectly 
sincere  in  doing  so. 

We  may  concede  that  appellant's  wife  made  a  grievous  mistake  in 
adhering  to  her  purpose  of  rejecting  medical  aid;  yet  in  view  of  the 
suffering,  and  in  the  end  death,  to  which  she  subjected  herself,  her 
sincerity  cannot  be  doubted.  And  certainly  there  was  nothing  in  the 
evidence  which  tended  to  prove  that  appellant,  though  making  the 
same  mistake,  was  any  less  sincere  than  she,  unless  it  was  the  fact  of 
his  sending  for  a  physician  after  the  birth  of  the  child.  This  act,  how- 
ever, appears  from  the  evidence  to  have  resulted  more  from  his  desire 

Lve  nothing  undone   for  her  relief  than    from  a  belief  that  benefit 
would  result  to  the  wife  from  the  physician's  p  or  treat 

In  any  event,  it  was  the  very  opposite  of  neglect,  and  should  go  to 
tin-  credit,  instead  of  the  debit,  side  of  appellant's  accounting  for  the 
offense  charged  in  the  indictment.    One  cannol  he  said  in  any  manner 


NEGLIGENCE   AS   SUPPLYING  INTENT.  1  _'  i 

to  neglect  or  refuse  to  perform  a  duty,  unless  he  has  knowledge  of 
the  condition  of  things  which  require  performance  at  his  hands.  In 
21  Am.  &  Eng.  Enc.  of  Law,  p.  199,  it  is  said:  "Under  the  common 
law,  no  conviction  of  manslaughter,  predicated  upon  an  omission  to 
provide  medical  attendance  from  conscientious  motives,  has  been  re- 
ported, and  none  can  probably  be  had  or  sustained.  Opinions  have  / 
widely  differed  in  all  ages  as  to  the  proper  mode  of  ministering  to  the 
sick,  and,  in  the  absence  of  a  statute  declaring  it  a  positive  duty  upon  1 
a  parent  to  call  in  a  medical  practitioner,  the  omission  to  do  so  can 
scarcely  be  considered  negligence  so  gross  and  wanton  as  to  be 
criminal,  when  the  fact  is  admitted  that  the  defendant  acted  in  all 
good  faith,  doing  the  best  he  could  according  to  his  lights."  In  a 
note  at  the  bottom  of  the  same  page  and  volume  will  be  found  the 
following  from  the  case  of  Reg.  v.  Wagstaffe,  10  Cox,  C.  C.  530, 
quoting  Willes,  J.,  who  said  to  the  jury  that  "at  different  times  people 
had  come  to  different  conclusions  as  to  what  might  be  done  with  a 
sick  person.  Two  hundred  years  ago,  if  a  child  was  afflicted  with  the 
King's  evil,  the  popular  feeling  was,  regardless  of  medical  science, 
to  have  it  touched  with  the  royal  hand,  because  that  might  result  in 
effecting  a  cure.  Again,  in  some  Catholic  countries,  a  custom  ob- 
tained of  taking  a  child  laboring  under  a  disease  to  a  particular  shrine, 
under  a  belief  that  that  was  the  best  course  to  adopt  with  a  view  to 
effect  a  cure.  In  such  cases  a  man  might  be  convicted  of  manslaught- 
er because  he  lived  in  a  place  where  all  the  community  were  of  a  dif- 
ferent opinion,  and  in  another  he  might  be  acquitted  because  they  were 
all  of  his  opinion.  There  was  a  very  great  difference  between  neglect- 
ing a  child  in  respect  to  food,  with  regard  to  which  there  could  be  but 
one  opinion,  and  neglect  of  medical  treatment,  as  to  which  there  might 
be  many  opinions."  fj\ 

It  was  argued  for  the  commonwealth  on  the  trial  that  the  life  of  ap-"^- 
pellant's  wife  might  or  could  have  been  saved  if  she  had  been  attend- 
ed by  a  physician  during  the  birth  of  her  child.  We  cannot  say  wheth- 
er or  not  such  would  have  been  the  result.  It  may  also  be  claimed  that, 
if  the  physician  had  not  been  sent  for  at  all,  she  might  have  lived  to 
rear  her  child,  which  is  still  alive  and  likely  to  continue  so;  for  who 
can  say  that  the  hemorrhage  of  which  the  mother  died  was  not  caused 
by  the  attempt  of  the  physician  to  remove  the  afterbirth  without  his 
instruments,  or  that,  if  he  had  not  returned  to  his  office  for  the  in- 
struments, he  would  have  been  present  when  the  hemorrhage  occur- 
red, and  might  have  prevented  or  checked  it.  The  testimony  throws 
no  light  on  these  matters.  Therefore  they  cannot  be  solved,  and  to 
attempt  to  do  so  would  be  as  idle  as  to  invade  the  realm  of  specula- 
tion in  quest  of  any  other  unknown  or  unknowable  thing.  As  well 
may  it  be  asked  why  some  women  die  in  childbirth,  though  attended 
by  physicians,  and  others  without  their  assistance  often  pass  through 
that  ordeal  harmless.  We  can  only  determine  from  the  record  before 
us  the  questions  that  are  capable  of  solution,  and,  if  correct  in  the 


12S  NEGLIGENCE   AS   SUPPLYING    INTENT.  (CIl.  4 

conclusion  hereinbefore  expressed,  that  there  was  no  evidence  to 
support  the  verdict  of  the  jury,  it  follows  that  the  trial  judge  should 
have  peremptorily  instructed  the  jury  to  find  appellant  not  guilty. 
Such  being  our  view  of  the  case,  it  is  unnecessary  to  pass  upon  the 
other  questions  presented. 

Wherefore  the  judgment  is  reversed,  and  case  remanded  for  a  new 
trial  and  further  proceedings  as  directed  by  the  opinion.2 


REGINA  v.   MARRIOTT. 

(Central  Criminal  Court,  1838.    8  Car.  &  P.  425.) 

Murder.  The  first  count  of  the  indictment  stated  that  it  was  the 
duty  of  the  defendant  to  provide  one  Mary  Warner,  under  the  care 
and  control  of  the  defendant,  with  sufficient  meat,  drink,  clothing, 
firing,  and  medicine,  and  that  by  the  neglect  of  the  defendant  so  to 
provide  said  Mary  Warner  with  sufficient  meat,  etc.,  said  Mary  War- 
ner became  mortally  diseased,  and  of  said  mortal  disease  died.  There 
was  a  second  count  charging  that  the  defendant  willfully,  etc.,  as- 
saulted Mary  Warner,  and  confined  her  in  a  certain  dark,  cold,  un- 
healthy, and  unwholesome  room,  without  proper  food,  etc.,  by  means 
of  which  she  died. 

From  the  evidence  of  the  prosecution  it  appeared  that  the  deceased; 
Mrs.  Warner,  who  was  about  74  years  of  age,  had  lived  for  some 
time  with  a  sister  in  Cannon  street,  in  the  city,  in  a  house  which  they 
let  out  in  lodgings,  and  of  which  the  sister  had  a  lease  under  the  Pew- 
terers'  Company.  Upon  the  death  of  the  sister  whose  name  was 
Reepe,  in  March,  1837,  the  prisoner  attended  at  the  funeral,  and, 
among  others,  a  grandson  of  Mrs.  Reepe,  named  Charles  Reepe,  was 
present.  He  was  called  as  a  witness,  and  gave  his  evidence  as  fol- 
lows: "Mrs.  Warner's  sister  was  my  grandfather's  second  wife.  I 
remember  the  death  of  Mrs.  Reepe.  I  went  to  her  funeral,  and  saw 
the  prisoner  there.  After  the  funeral  he  called  me  on  one  side,  and 
asked  me  if  I  should  have  any  objection  to  pay  for  my  cloak,  and  my 
sister's,  and  my  brother's  also,  as  he  did  not  wish  to  put  Mary  Warner 
to  any  expense,  and  he  should  pay  for  his.  He  told  me  he  was  left 
executor.  He  showed  me  about  a  quarter  of  a  sheet  of  writing  paper 
as  a  will,  and  told  me  he  had  found  it  by  mere  chance  lying  on  the 
ground.  I  observed  Mrs.  Warner  was  much  grieved,  and  took  a  chair 
and  sal  down  by  the  side  of  her,  and  told  her  she  should  come  and  live 
at  home  with  me,  and  I  would  make  her  happy  and  comfortable  for 
the  remainder  of  her  life.  Her  reply  was,  that  it  was  a  kind  offer, 
certainly.     The  prisoner  said:    "No,  no,  sir,    she  shall  go  home  and 

a  Bee,  also.  Reg.  v.  Knights,  l  V  &  P.  4<!  (1860);  Beg.  v.  Shepherd,  1  Leigh 
ft  C.  l  IT  (1302). 


NEGLIGENCE   AS    SUPPLYING   INTENT.  129 

live  along  with  me,  as  you  are  no  relation  whatever."  I  asked  him  what 
relation  he  was.  He  said  he  was  a  townsman,  and  that  he  had  buried 
Mrs.  Reepe's  sister,  and  it  was  Mrs.  Reepe's  wish  that  he  should 
bury  her  too;  in  fact,  that  he  was  executor.  He  said:  "Mrs.  Warner 
is  going  home  to  live  along  with  me  until  affairs  are  settled,  and  I  will 
make  her  happy  and  comfortable." 

To  prove  the  interference  of  the  prisoner  in  Mrs.  Warner's  affairs, 
as  well  as  to  show  that  he  had  undertaken  to  provide  her  with  food 
and  other  necessaries,  a  Mrs.  Cruikshank  was  called  as  a  witness. 
She  said:  "I  am  the  wife  of  Robert  Cruikshank,  and  live  at  No.  34 
Cannon  street,  city.  Some  days  previous  to  the  10th  of  October  I 
went  with  my  husband  to  No.  1  Dolphin  Court.  I  there  saw  the  pris- 
oner and  his  wife.  Mr.  Marriott  asked  me  to  write  an  agreement 
about  the  house  No.  34  Cannon  street,  of  which  Mr.  Cruikshank  was 
to  take  the  upper  part.  I  heard  the  prisoner  mention  the  name  of 
Mary  Warner  to  his  wife.  He  talked  in  an  indistinct  tone.  I  could 
hear  nothing  more  than  the  name  of  Mary  Warner.  Mrs.  Marriott 
dissented  to  what  he  said,  whatever  it  was,  and  he  again  repeated  it 
to  her,  and  she  again  dissented.  I  asked  the  prisoner  what  interest 
Mrs.  Warner  had  in  the  house,  and  he  said,  'None  whatever.'  He 
asked  me  'if  I  remembered  a  conversation  he  had  with  me  respect- 
ing the  decease  of  Mrs.  Reepe.'  I  told  him,  'Perfectly  well.'  He  said, 
'Did  I  not  remember  he  had  told  me  at  Mrs.  Reepe's  decease  that  Mrs. 
Warner  was  her  sister.'  I  inquired  in  what  way  Mrs.  Warner  could 
be  a  party  to  the  agreement.  His  reply  was,  'None  whatever.'  He 
said  something  about  her  not  being  capable  of'  undergoing  the  fatigue ; 
that  at  her  advanced  age  she  was  quite  incapable;  that  he  had  been 
accustomed  to  let  lodgings.  There  was  an  agreement  ultimately  sign- 
ed. I  produce  it.  It  is  not  stamped.  After  it  had  been  signed,  I 
inquired  whether  Mrs.  Warner  was  a  relative,  as  he  seemed  to  take 
such  an  interest  in  her  affairs.  He  said,  'None  at  all.'  He  said,  re- 
specting the  house  in  Cannon  street,  Mrs.  Warner  having  been  ac- 
customed to  let  lodgings,  he  had  taken  the  lease  of  the  house  of  the 
Pewterers'  Company,  on  condition  of  paying  up  an  arrear  of  rent ; 
that  they  had  given  him  four  years  to  pay  it  by  three  installments, 
£20  of  which  he  had  paid,  in  consideration  of  which  he  had  under-' 
taken  to  keep  Mrs.  Warner  comfortable  as  long  as  she  lived.  I  wish- 
ed to  purchase  some  of  the  furniture,  and  he  said  I  might  make  my 
own  selection.  He  did  not  say  to  whom  it  belonged.  I  understood 
it  was  his  own  property.  He  did  not  speak  of  it  as  anybody's  proper- 
ty but  his  own.  He  appointed  a  Mr.  Kelly  to  value  the  furniture  in 
the  house  in  Cannon  street  to  Mr.  Cruikshank,  and  a  Mr.  Phillips 
was  appointed  to  value  it  for  us.  The  amount  of  the  valuation  was 
£37,  within  a  few  shillings.  That  has  not  been  paid.  We  were  to 
pay  it  to  Mr.  Marriott.  On  her  cross-examination  she  said :  "When 
the  name  of  Mary  Warner  was  mentioned,  and  Mrs.  Marriott  shook 
her  head,  the  prisoner  said,  'Yes,  yes,  better ;'  and  the  name  of  Mary 
Mik.Cr.l.—  9 


130  NEGLIGENCE   AS   SUPPLYING    INTENT.  (Ch.  4 

Warner  was  put  into  the  agreement,  because  Mrs.  Marriott  asked  me 
to  do  so." 

The  clerk  to  the  Pewterer's  Company  was  called  and  he  said: 
"There  was  never  any  premises  in  Cannon  street  let  to  the  prisoner. 
He  never  at  any  time  took  a  lease  in  any  shape  from  the  Pewterers' 
Company.  He  has  paid  two  installments  of  £11  15s.  each  for  arrears 
of  rent  due  from  Mrs.  Reepe.  He  paid  it  as  her  executor.  He  so 
stated."  On  his  cross-examination  he  was  asked  whether  there  was 
not  a  petition  sent  in  on  the  part  of  Mary  Warner,  as  the  sister  of 
Mrs.  Reepe,  to  let  her  off  the  arrears  in  consideration  of  her  long 
tenancy.  His  reply  was :  "There  was  a  memorial  sent  in  in  the  name 
of  the  prisoner.  He  stated  his  object  to  be  to  serve  Mary  Warner. 
The  prayer  of  the  petition  was  not  acceded  to.  He  made  himself 
answerable  for  the  amount,  and  signed  a  written  memorandum."  The 
will  of  Mrs.  Reepe  was  read.  It  was  dated  the  26th  of  March,  1836, 
bequeathing  to  Mrs.  Warner  all  her  effects,  and  the  lease  of  the  house 
in  Cannon  street.  A  clerk  in  the  Prerogative  Office  was  called,  and 
stated  that  the  personal  property  was  sworn  under  £100,  and  that  let- 
ters of  administration  were  granted  the  20th  of  July,  1837;  that  Mrs. 
Warner  must  have  appeared  personally;  and  that  the  prisoner  was 
one  of  her  sureties  for  the  proper  administration  of  the  effects.1 

Patteson,  J.,  in  summing  up  (after  stating  the  first  count  of  the 
indictment  and  observing  upon  certain  parts  of  the  evidence),  said: 
If  the  prisoner  was  guilty  of  willful  neglect,  so  gross  and  willful  that 
you  are  satisfied  he  must  have  contemplated  <1e  death  of  Mrs.  Warner, 
then  he  will  be  guilty  of  murder.  If,  however,  you  think  only  that  he 
was  so  careless  that  her  death  was  occasioned  by  his  negligence,  though 
he  did  not  contemplate  it,  he  will  be  guilty  of  manslaughter.  The 
cases  which  have  happened  of  this  description  have  been  generally 
cases  of  children  and  servants,  where  the  duty  has  been  apparent. 
I  This  is  not  such  a  case;  but  it  will  be  for  you  to  say  whether,  from 
the  way  in  which  the  prisoner  treated  her,  he  had  not  by  way  of  con- 
tract, in  some  way  or  other,  taken  upon  him  the  performance  of  that 
duty  which  she,  from  age  and  infirmity,  was  incapable  of  doing.  [His 
Lordship  then  read  the  statements  of  Mr.  Reepe,  and  Mrs.  Cruik- 
shank,  and  continued:]  This  is  the  evidence  on  which  you  are  called 
"ii  to  infer  that  the  prisoner  undertook  to  provide  the  deceased  with 
necessaries;  and  though,  if  he  broke  that  contract,  he  might  not  be 
liable  to  be  indicted  during  her  life,  yet,  if  by  his  negligence  her  death 
was  occasioned,  then  he  becomes  criminally  responsible. 

Verdict—  Guilty  of  manslaughter  only. 

i  The  Btatemenl  is  abridged,  and  a  portion  of  the  evidence  not  bearing  on 
the  fluty  of  the  Aefenflanl  is  unfilled. 


NEGLIGENCE   AS   SUPPLYING    INTENT.  131 

REGINA  v.  POCOCK. 
(Queens  Bench,  1851.    5  Cox,  C.  C.  172.) 

This  was  a  rule  to  quash  a  coroner's  inquisition  which  had  been 
removed  into  this  court  by  certiorari.  The  inquisition  alleged  that 
the  defendants  were  the  trustees  of  a  public  road  under  an  act  of 
Parliament;  that  it  was  their  duty  to  contract  for  the  due  repara- 
tion of  the  said  road;  that  they  feloniously  did  neglect  and  omit  to 
contract  for  the  repair  of  the  same,  whereby  it  became  very  miry, 
ruinous,  deep,  broken,  and  in  great  decay;  and  that  a  cart,  which 
the  deceased  was  driving  along  the  road,  fell  into  a  hole  in  the  road, 
and  by  reason  thereof  the  deceased  was  thrown  out,  and  sustained 
the  injuries  of  which  he  afterwards  died. 

Charnock  showed  cause.  This  case  is  not  distinguishable  from 
those  of  persons  who  have  the  charge  of  machinery  at  mines,  of 
signals  or  locomotives  on  railways,  and  the  like;  and  there  are 
many  precedents  of  indictments  for  manslaughter  in  such  cases  where 
death  has  been  occasioned  by  a  neglect  of  duty  on  the  part  of  the 
persons  so  intrusted.  R.  v.  Barrett,  2  Car.  &  K.  343 ;  R.  v.  Haines, 
Id.  368;  R.  v.  Gregory,  5  B.  &  Ad.  555.  Here  a  public  duty  was 
cast  upon  the  trustees,  and  they  were  authorized  to  raise  money  bv 
rates  for  the  purpose;  and  if  their  neglect  of  duty  has  caused  the 
death  of  another  they  are  guilty  of  manslaughter. 

Hayes,  contra,  was  not  called  upon. 

Lord  Campbell,  C.  J.  The  cases  cited  show  a  personal  duty,  the 
neglect  of  which  has  directly  caused  death;  and,  no  doubt,  where 
that  is  the  case,  a  conviction  of  manslaughter  is  right.  But  how  do 
those  apply  to  trustees  of  a  highway?  How  can  it  be  said  that  their 
omission  to  raise  a  rate,  or  to  contract  for  the  replication  of  the  road, 
directly  causes  the  death?  If  so,  the  surveyors  or  the  inhabitants  of 
the  parish  would  be  equally  guilty  of  manslaughter;  for  the  law 
casts  upon  them  the  duty  of  keeping  the  roads  in  repair.  To  up- 
hold this  inquisition  would  be  to  extend  the  criminal  law  in  a  most 
alarming  manner,  for  which  there  is  no  principle  or  precedent. 

Patteson,  J.     This  is  really  too  extravagant. 

Wightman,  J.,  concurred. 

Erle,  J.  In  all  the  cases  of  indictment  for  manslaughter,  where 
the  death  has  been  occasioned  by  omission  to  discharge  a  duty,  it 
will  be  found  that  the  duty  was  one  connected  with  life,  so  that  the 
ordinary  consequence  of  neglecting  it  would  be  death.  Such  are  the 
cases  of  machinery  at  mines,  of  engine  drivers,  or  the  omission  to  sup- 
ply food  to  helpless  infants. 

Inquisition  quashed. 


132  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Ch.  5 

CHAPTER  V. 
INTENT  AS  AFFECTED  BY  CONDITIONS. 


SECTION  1.— IGNORANCE  OR  MISTAKE  OF  LAW. 


REX  v.  THURSTON. 

(King's  Bench,  1G49.     1  Lev.  91.) 

Indictment  of  murder,  and  on  a  special  verdict  found  at  the  Assizes 
at  Bury,  the  case  was :  In  Hillary  Term,  1659,  a  latitat  issued  to  ar- 
rest him,  returnable  in  Easter  Term,  1660,  on  which  the  twenty-ninth 
of  May  he  was  arrested  by  a  warrant  thereupon,  and  upon  that  arrest 
the  bailiff  was  killed;  and  afterwards  an  act  is  made  for  the  confirma- 
tion of  all  judicial  proceedings,  which  related  to  the  first  day  of  the 
Parliament,  viz.,  15  April,  1660,  and  the  sole  question  was,  if  by  the 
relation  of  the  act  which  made  the  proceedings  legal  and  the  arrest 
good  (which  else  had  been  void  and  without  authority),  this  killing  be 
murder.  And  it  was  argued  at  the  bar  by  Kelynge,  for  the  King,  and 
by  Jones,  for  the  defendant :  And  Kelynge  said,  that  by  relation  all  the 
process  is  made  good,  for  it  shall  relate  to  the  first  day  of  the  Parlia- 
ment ;  Jones  argued  the  act  should  relate  to  the  first  day  of  the  Parlia- 
ment, but  not  to  such  intent  as  to  make  it  murther  ex  post  facto,  which 
was  not  so  when  the  fact  was  done.  The  court  said  nothing;  but  after- 
wards, in  Easter  Term,  16  Car.  II,  I  heard  Thurston  plead  his  pardon 
of  this  murder,  whereby  it  seems  as  if  the  opinion  of  the  court  was 
against  him. 


STATE  v.  BOYETT. 

(Supreme  Court  of  North  Carolina,   1849.     32  N.  C.  836.) 

PEARSON,  J.1  "Ignorantia  legis  neminem  excusat."  Every  one 
competent  to  act  for  himself  is  presumed  to  know  the  law.  No  one 
is  allowed  t"  imself  by  pleading  ignorance.    Courts  arc  com- 

pelled  t<>  act  upon  this  rule,  as  well  in  criminal  as  civil  matters.  It  lies 
at  the  foundation  <,f  the  administration  of  justice.  And  there  is  no  tell- 
ing to  what  extent,  if  admissible,  tin-  plea  of  ignorance  would  he  car- 

i  'I'll.-  opinion  only  is  printed. 


j 

■ 

- 


Sec.  1)  IGNORANCE   OR  MISTAKE   OF  LAW.  133 

ried,  or  the  degree  of  embarrassment  that  would  be  introduced  into 
every  trial,  by  conflicting  evidence  upon  the  question  of  ignorance. 

In  civil  matters,  it  is  admitted,  the  presumption  is  frequently  not  in 
accordance  with  the  truth.  The  rules  of  property  are  complicated  sys- 
tems— the  result,  "not  of  the  reason  of  any  one  man,  but  of  many  men 
put  together"  ;  hence  they  are  not  often  understood,  and  more  frequent- 
ly not  properly  applied,  and  the  presumption  can  only  be  justified  upon 
the  ground  of  necessity.  But  in  criminal  matters  the  presumption  most 
usually  accords  with  the  truth.  As  to  such  as  are  mala  in  se,  every  one 
has  an  innate  sense  of  right  and  wrong,  which  enables  him  to  know 
when  he  violates  the  law,  and  it  is  of  no  consequence  if  he  be  not  able 
to  give  the  name  by  which  the  offense  is  known  in  the  lawbooks,  or 
to  point  out  the  nice  distinctions  between  the  different  grades  of  of- 
fense. As  to  such  as  are  "mala  prohibita,"  they  depend  upon  the  stat- 
utes printed  and  published  and  put  within  the  reach  of  every  one ;  so 
that  no  one  has  a  right  to  complain  if  a  presumption,  necessary  to  the 
administration  of  the  law,  is  applied  to  him.  To  allow  ignorance  as  an 
excuse  would  be  to  offer  a  reward  to  the  ignorant. 

The  defendant  voted,  when  he  was  not  entitled  by  law  to  vote.  He 
is  presumed  to  know  the  law.  Hence  he  voted,  knowing  that  he  had 
no  right,  and,  acting  with  this  knowledge,  he  necessarily  committed  a 
fraud  upon  the  public — in  the  words  of  the  act,  he  knowingly  and 
fraudulently  voted  when  he  was  not  entitled  to  vote.  It  being  proved 
on  the  part  of  the  state  that  he  voted,  not  having  resided  within  the 
bounds  of  the  company  for  six  months  next  preceding  the  election, 
a  case  was  made  out  against  him. 

He  offered  to  prove,  for  the  purpose  of  rebutting  the  inference  of 
fraud,  that  he  had  stated  the  facts  to  a  respectable  gentleman,  who 
advised  him  he  had  a  right  to  vote.  His  honor  held  the  testimony 
inadmissible.    We  concur  in  that  opinion. 

The  evidence  had  no  tendency  to  rebut  the  inference  of  fraud,  for 
the  inference  was  made  from  his  presumed  knowledge  of  the  law, 
and  that  presumption  could  not  be  met  by  any  such  proof,  without 
introducing  all  the  evils  which  the  rule  was  intended  to  avoid.  The 
question,  in  effect,  was :  Shall  a  man  be  allowed,  in  excuse  of  a 
violation  of  the  law,  to  prove  that  he  was  ignorant  of  the  very  law 
under  which  he  professed  to  act,  and  under  which  he  claimed  the 
privilege  of  voting?  If  he  was  not  ignorant  of  the  law,  and  that  he 
cannot  be  heard  to  allege,  then  he  voted  knowingly,  and,  by  necessary 
inference,  fraudulently. 

An  indictment  for  extortion  charges  that  the  defendant  received 
the  fee  "unlawfully,  corruptly,  deceitfully,  and  extorsively."  This 
averment  the  state  must  prove.  It  is  done  by  showing  that  the  de- 
fendant received  what  the  law  does  not  allow  him  to  take ;  for  the  pre- 
sumption is  "he  knew  the  law  upon  the  subject  of  fees  to  be  taken 
by  himself,"  and  the  inference  from  such  knowledge  is  that  he  acted 
"corruptly  and  deceitfully"  (words  quite  as  strong  as  knowingly  and 


134  INTENT   AS   AFFECTED    BY    CONDITIONS.  (Ch.  5 

fraudulently),  unless  it  is  shown  that  he  did  so  by  some  inadvertence 
or  mistake  in  calculation.  He  cannot  excuse  himself  for  taking  more 
than  the  legal  fee  by  saying  that  he  was  misled  by  the  advice  of  an 
attorney.  If  such,  or  like,  excuses  were  admitted,  it  would  hardly 
ever  be  possible  to  convict.  He  might  always  contrive  to  ground 
his  conduct  upon  misapprehension  or  improper  advice.  State  v.  Dick- 
ens, 2  N.  C.  406.  It  would  be  a  different  question  if  the  defendant 
had  stated  the  facts  to  the  judges  of  the  election,  and  they  had  decided 
in  favor  of  his  right  to  vote;  for  their  decision  would  rebut  the  pre- 
sumption of  knowledge  on  his  part  in  a  manner  contemplated  by  law. 

The  case  was  ably  argued  for  the  defendant.  It  was  insisted  that 
it  was  necessary  for  the  state  to  aver  and  prove  that  the  defendant 
voted  knowingly  and  fraudulently.  That  position  is  admitted.  The 
reply  is  the  averment  was  made  and  was  proved;  for,  proof  being 
made  that  he  voted  when  he  was  not  entitled  to  vote,  the  presumption 
is  that  he  knew  the  law,  and  fraud  is  the  necessary  inference,  as 
corruption  and  deceit  were  in  the  case  above  cited.  It  cannot  be 
contended  that,  to  fix  him  with  knowledge,  the  state  must  show  that 
some  one  read  and  explained  the  law  to  him ;  or,  to  fix  him  with 
fraud,  that  it  must  be  proven  he  had  been  bribed.  If  so,  the  statute 
is  a  dead  letter.  Our  attention  was  called  to  the  fact  that  the  act  of 
1844  (Laws  IS -14-15,  p.  67,  c.  43),  making  the  offense  indictable, 
uses  the  words,  "knowingly  and  fraudulently,"  which  words  are  not 
used  in  the  act  of  1777,  imposing  a  penalty.  To  incur  the  penalty 
under  the  act  of  1777,  the  voting  must  be  unlawful,  and  it  must  be 
done  knowingly  and  fraudulently,  in  the  sense  above  explained.  If 
one,  having  a  deed  for  50  acres  of  land,  votes  in  the  Senate,  and  it 
turns  out  that  the  deed  only  contains  49  acres,  the  penalty  is  not  in- 
curred, unless  he  knew  the  fact  at  the  time  he  voted.  So,  if  one  votes 
for  a  constable,  and  it  turns  out  that  the  dividing  line  includes  him  in 
another  company,  there  is  not  in  either  case  that  criminal  intent  which 
is  a  necessary  ingredient  of  the  offense,  whether  it  be  punished  by 
a  penalty  or  by  indictment.  The  act  of  1814  expresses  in  so  many 
words  what  the  law  would  have  implied.  It  is  a  strained  inference 
that  by  so  doing  the  Legislature  intended  to  make  the  case  of  illegal 
voting  an  "exception,"  and  to  take  it  out  of  the  rule  "ignorantia  legis," 
a  rule  which  has  always  been  acted  upon  in  our  law,  and  in  the  laws 
of  every  nation  of  which  we  have  any  knowledge,  and  without  which, 
in  fact,  the-  law  cannot  be  administered.  The  inference  sought  to  be 
made  re  ults  iii  thi  :  The  Legislature  did  nol  intend  the  act  of  L844 
to  be  carried  into  effect.  It  was  intended  to  he  "brutum  Eulmen." 
n  has  been  suggested  for  making  an  exception  in  this  case. 
The  only  additional  qualification  to  that  of  a  voter  for  a  member  of 
the  Mouse  of  Commons  is  a  r<  of  six  months  in  the  captain's 

company. 

This  is  not  complicated  or  difficult  to  he  understood.  Why  make 
the  exception,  and  offer  a  reward  for  ignorance  in  this  particular  case?" 


Sec.  1)  IGNORANCE    OR   MISTAKE    OF   LAW.  135 

Such  a  construction  cannot  be  admitted,  unless  the  lawmakers  had 
declared  their  intention  by  positive  enactment. 

Per  Curiam.     There  is  no  error  in  the  court  below,  and  the  same 
must  be  so  certified.2 


CUTTER  v.  STATE. 

(Supreme  Court  of  New  Jersey,  1873.    36  N.  J.  Law,  125.) 

The  opinion  of  the  court  was  delivered  by  Beasley,  C.  J.8  The 
defendant  was  indicted  for  extortion  in  taking  fees  to  which  he  was 
not  entitled,  on  a  criminal  complaint  before  him  as  a  justice  of  the 
peace.  The  defense  which  he  set  up,  and  which  was  overruled,  was 
that  he  had  taken  these  moneys  innocently,  and  under  a  belief  that 
by  force  of  the  statute  he  had  a  right  to  exact  them. 

This  subject  is  regulated  by  the  twenty-eighth  section  of  the  act 
for  the  punishment  of  crimes.  Nix.  Dig.  197.  This  clause  declares 
that  no  justice  or  other  officer  of  this  state  shall  receive  or  take  any 
fee  or  reward  to  execute  and  do  his  duty  and  office  but  such  as  is  or 
shall  be  allowed  by  the  laws  of  this  state,  and  that  "if  any  justice, 
etc.,  shall  receive  or  take,  by  color  of  his  office  any  fee  or  reward 
whatsoever,  not  allowed  by  the  laws  of  this  state,  for  doing  his  office, 
and  be  thereof  convicted,  he  shall  be  punished,"  etc. 

If  the  magistrate  received  the  fees  in  question  without  any  corrupt 
intent,  and  under  the  conviction  that  they  were  lawfully  his  due,  I 
do  not  think  such  an  act  was  a  crime  by  force  of  the  statute  above 
cited. 

But  it  is  argued  on  the  part  of  the  prosecution  that  as  the  fees 
to  which  the  justice  was  entitled  are  fixed  by  law,  and  as  he  cannot 
set  up  as  an  excuse  for  his  conduct  his  ignorance  of  the  law,  his  guilty 
knowledge  is  undeniable.  The  argument  goes  upon  the  legal  maxim, 
"Ignorantia  legis  neminem  excusat."  But  this  rule,  in  its  application 
to  the  law  of  crimes,  is  subject,  as  it  is  sometimes  in  respect  to  civil 
rights,  to  certain  important  exceptions.  Where  the  act  done  is  malum 
in  se,  or  where  the  law  which  has  been  infringed  was  settled  and 
plain,  the  maxim,  in  its  rigor,  will  be  applied;  but  where  the  law 
is  not  settled,  or  is  obscure,  and  where  the  guilty  intention,  being  a 
necessary   constituent   of  the  particular  offense,   is   dependent  on   a 

2  Accord :  Illegal  voting,  McGuire  v.  State,  7  Humph.  (Term.)  54  (1846) ; 
keeping  gaming  house,  Winehart  v.  State,  6  Ind.  30  (1854) ;  statutory  larceny, 
State  v.  Welch,  73  Mo.  284,  30  Am.  Rep.  515  (1S80) ;    bigamy.  People  v.  Weed. 

29  Hun  (N.  Y.)  628  (18S3) ;  murder,  Weston  v.  Commonwealth,  111  Pa.  2.">T.  2 
Atl.  191  (1886) ;  opening  grave,  State  v.  McLean,  121  N.  C  589,  28  S.  E.  140.  42 
L.  R.  A.  721  (1897) ;   unlawful  discrimination,  State  v.  Railway,  122  N.  C.  1052, 

30  S.  E.  133,  41  L.  R.  A.  246  (1898) ;  compounding  crime,  State  v.  Carver.  <J!>  N. 
H.  216,  39  Atl.  973  (1897) ;  false  imprisonment,  Begley  v.  Commonwealth  i  Ky.) 
60  S.  W.  847  (1901).  Cf.  Commonwealth  v.  Bradford,  9  Mete  (Mass.)  268 
(1845). 

s  Part  of  the  opinion  relating  to  another  point  is  omitted. 


136  INTENT   AS   AFFECTED    BY    CONDITIONS.  (Gl   5 

knowledge  of  the  law,  this  rule,  if  enforced,  would  be  misapplied. 
To  give  it  any  force  in  such  instances  would  be  to  turn  it  aside  from 
its  rational  and  original  purpose,  and  to  convert  it  into  an  instru- 
ment of  injustice.  The  judgments  of  the  courts  have  confined  it  to 
its  proper  sphere.  Whenever  a  special  mental  condition  constitutes 
a  part  of  the  offense  charged,  and  such  condition  depends  on  the 
question  whether  or  not  the  culprit  had  certain  knowledge  with  respect 
to  matters  of  law,  in  every  such  case  it  has  been  declared  that  the 
subject  of  the  existence  of  such  knowledge  is  open  to  inquiry  as  a 
fact  to  be  found  by  the  jury.  This  doctrine  has  often  been  applied 
to  the  offense  of  larceny.  The  criminal  intent,  which  is  an  essential 
part  of  that  crime,  involves  a  knowledge  that  the  property  taken  be- 
longs to  another;  but  even  when  all  the  facts  are  known  to  the  ac- 
cused, and  so  the  right  to  the  property  is  a  mere  question  of  law, 
still  he  will  make  good  his  defense  if  he  can  show  in  a  satisfactory 
manner  that,  being  under  a  misapprehension  as  to  his  legal  rights, 
he  honestly  believed  the  articles  in  question  to  be  his  own.  Rex  v. 
Hall,  3  Car.  &  P.  409 ;  Reg.  v.  Reed,  Car.  &  M.  306. 

The  adjudications  show  many  other  applications  of  the  same  prin- 
ciple, and  the  facts  of  some  of  such  cases  were  not  substantially  dis- 
similar from  those  embraced  in  the  present  inquiry.  In  the  case  of 
People  v.  Whaley,  6  Cow.  (N.  Y.)  661,  a  justice  of  the  peace  had 
been  indicted  for  taking  illegal  fees,  and  the  court  held  that  the 
motives  of  the  defendant,  whether  they  showed  corruption  or  that 
he  acted  through  a  mistake  of  the  law,  were  a  proper  question  for  a 
jury.  The  case  of  Commonwealth  v.  Shed,  1  Mass.  228,  was  put 
before  the  jury  on  the  same  ground.  This  was  likewise  the  ground 
of  decision  in  the  case  of  Commonwealth  v.  Bradford,  9  Mete.  (Mass.) 
268 ;  the  charge  being  for  illegal  voting,  and  it  being  declared  that 
evidence  that  the  defendant  had  consulted  counsel  as  to  his  right  of 
suffrage  and  had  acted  on  the  advice  thus  obtained  was  admissible 
in  his  favor.  This  evidence  was  only  important  to  show  that  the 
defendant,  in  infringing  the  statute,  had  done  so  in  ignorance  of  the 
rule  of  law  upon  the  subject.  Many  other  cases  resting  on  the  same 
basis  might  be  cited ;  but  the  foregoing  are  sufficient  to  mark  clearly 
the  boundaries  delineated  by  the  courts  to  the  general  rule  that  igno- 
rance of  law  is  no  defense  when  the  mandates  of  a  statute  have  been 
disregarded  or  a  crime  has  been  perpetrated.  That  the  present  case 
falls  within  the  exceptions  to  this  general  rule  appears  to  me  to  be 
plain.  There  can  be  no  doubl  thai  an  opinion  very  generally  pre- 
vailed thai  magistrates  had  the  right  to  exact  the  fees  which  were 
received  by  this  defendant  and  that  they  could  be  legally  taken  under 
similar  circumstances.  The  prevalence  of  such  an  opinion  could 
not,  it  is  true,  legalize  the  act  of  taking  such  fees;  but  its  existence 
might  tend  to  show  thai  the  defendant,  when  he  did  the  act  with  which 
he  stands  charged,  wa    nol  conscious  of  doing  anything  wrong. 

if  a  justice  of  the  peace,  being  called  upon  to  construe  a  statute 


Sec.  2)  IGNORANCE    OR   MISTAKE   OF   FACT.  137 

with  respect  to  the  fees  coming  to  himself,  should,  exercising  due 
care,  form  an  honest  judgment  as  to  his  dues,  and  should  act  upon 
such  judgment,  it  would  seem  palpably  unjust,  and  therefore  incon- 
sistent with  the  ordinary  grounds  of  judicial  action,  to  hold  such 
conduct  criminal  if  it  should  happen  that  a  higher  tribunal  should 
dissent  from  the  view  thus  taken,  and  should  decide  that  the  stat- 
ute was  not  susceptible  of  the  interpretation  put  upon  it.  I  think 
the  defendant  had  the  right  in  this  case  to  prove  to  the  jury  that  the 
moneys,  which  it  is  charged  he  took  extorsively,  were  received  by 
him  under  a  mistake  as  to  his  legal  rights,  and  that,  as  such  evidence, 
being  offered  by  him,  was  overruled,  the  judgment  on  that  account 
must  be  reversed.2 


SECTION  2.— IGNORANCE   OR  MISTAKE  OF  FACT. 

In  the  case  of  Sir  William  Hawksworth,-  related  by  Baker  in  his 
Chronicle  of  the  Time  of  Edward  IV,  p.  223  (sub  anno,  1471),  he  be- 
ing weary  of  his  life  and  willing  to  be  rid  of  it  by  another's  hand, 
blamed  his  parker  for  suffering  his  deer  to  be  destroyed,  and  com- 
manded him  that  he  should  shoot  the  next  man  that  he  met  in  the  park 
that  would  not  stand  or  speak.  The  knight  himself  came  in  the  night 
into  the  park,  and,  being  met  by  the  keeper,  refused  to  stand  or  speak. 
The  keeper  shot  and  killed  him,  not  knowing  him  to  be  his  master. 
This  seems  to  be  no  felony,  but  excusable  by  the  statute  of  malefactors 
in  parcis,  for  the  keeper  was  in  no  fault,  but  his  master;  but,  had  he 
known  him,  it  had  been  murder.     1  Hale,  P.  C.  40. 


state  v.  Mcdonald. 

(St.  Louis  Court  of  Appeals,  1879.    7  Mo.  App.  510.) 

Lewis,  P.  J.,  delivered  the  opinion  of  the  court.3 
The  defendant,  a  car  driver  and  conductor  on  the  Lindell  Railway, 
was  convicted  in  the  court  of  criminal  correction  of  an  assault  and 
battery  committed  upon  the  person  of  Oscar  Wielns.     The  only  ques- 
tion raised  by  the  appeal  is  whether,  when  a  passenger  on  a  street 

2  Accord:  Perjury,  U.  S.  v.  Conner,  3  McLean  (U.  S.)  573,  Fed.  Cas.  No. 
14.847  (1845);  malicious  mischief,  Goforth  v.  State,  8  Humph.  (Term.)  37 
(1847) ;  trespass,  State  v.  Hause,  71  N.  C.  51S  (1874) ;  conspiracy,  People  v. 
Powell.  63  N.  Y.  88  (1875)  ;  larceny,  People  v.  Husband,  3G  Mich.  306  (1877)  : 
extortion,  Leeman  v.  State,  35  Ark.  438,  37  Am.  Rep.  44  (1SS0).  See,  also,  Reg. 
v.  Allday,  8  Car.  &  P.  136  (1837). 

s  Part  of  the  opinion  is  omitted. 


138  INTENT   AS    AFFECTED   BY   CONDITIONS.  (Ch.  5 

car  has  in  fact  paid  his  fare,  the  conductor  is  justified  in  forcibly 
ejecting  him  from  the  car  because  he,  the  conductor,  honestly  be- 
lieves that  the  passenger  has  not  paid  his  fare,  but  persistently  refuses 
so  to  do. 

Crime  cannot  exist  without  a  criminal  intent.  A  man  at  midnight 
discovers  an  intruder  on  his  premises,  under  circumstances  which  fur- 
nish reasonable  cause  to  apprehend  that  a  felony  is  in  progress,  or  about 
to  be  perpetrated.  He  kills  the  supposed  burglar,  in  the  honest  belief 
that  nothing  less  will  save  his  own  life  or  property.  It  turns  out  that 
the  intruder  was  innocent  of  any  criminal  purpose,  yet  his  slayer  has 
committed  no  crime,  either  in  morals  or  in  law,  deserving  punishment. 
The  criminal  intent  was  wanting.  A  person  passes  counterfeit  money, 
being  ignorant  of  its  character  and  honestly  believing  it  to  be  genuine. 
The  one  who  receives  it  may  recover  for  the  wrong  done  him,  not- 
withstanding the  innocent  mistake  of  the  passer;  and  yet  an  indict- 
ment against  the  passer  of  the  money  would  fail,  because  he  was  guil- 
ty of  no  criminal  intent.  In  the  case  before  us,  according  to  the  facts 
stated,  the  defendant  honestly  believed  that  he  was  simply  discharg- 
ing his  duty  in  putting  off  the  passenger  who  refused  to  pay  his  fare, 
and  therefore  in  so  doing  he  committed  no  crime.  The  court  erred 
in  giving  instructions  in  support  of  a  contrary  view,  and  in  refusing 
instructions  prayed  for  by  the  defendant  which  were  in  harmony  with 
the  principles  herein  declared. 

The  judgment  is  reversed,  and  the  cause  remanded.  All  the  Judges 
concur. 


REGINA  v.  MACHEKEQUONABE. 

(High  Court  of  Justice  for  Ontario,  1896.    28  Ont.  309.) 

This  was  a  case  reserved  under  the  Criminal  Code  of  1892,  amend- 
ing Act  58  &  59  Vict.  c.  40,  (D),  as  to  whether  the  prisoner  was  prop- 
erly convicted  of  manslaughter. 

The  trial  took  place  at  Rat  Portage  on  the  3d  of  December,  1896, 
before  Rose,  J.,  and  a  jury. 

It  appeared  from  the  evidence  that  the  prisoner  was  a  member  of  a 
tribe  of  pagan  Indians,  who  believed  in  the  existence  of  an  evil  spirit 
clothed  in  human  ilesh,  or  in  human  form,  called  a  "Wendigo,"  which 
would  eat  a  human  being. 

'I  hat  it  was  reported  that  a  Wendigo  had  been  seen,  and  it  was  sup- 

i    was   in   the  irl d   of   their  camp,   desiring  to  do  them 

harm. 

That  among  other  precautions  to  protect  themselves,  guards  and 
sentries,  the  prisoner  being  one,  were  placed  out  in  pairs  armed  with 
firearms  (the  prisoner  having  a  rifle)  ;  that  the  prisoner  saw  what 
appeared  to  be  a  tall  human  being  running  in  the  distance,  which  he 
supposed  was  the  Wendigo;    thai    he  and  another  Indian  gave  chase 


Sec.  2)  IGNORANCE    OR   MISTAKE    OF   FACT.  139 

and  after  challenging  three  times  and  receiving  no  answer  fired  and 
shot  the  object,  when  it  was  discovered  to  be  his  own  foster  father, 
who  died  soon  afterward. 

The  jury  found  affirmative  answers  to  the  following  questions: 
"Are  you  satisfied  the  prisoner  did  kill  the  Indian?"  "Did  the  pris- 
oner believe  the  object  he  shot  at  to  be  a  Wendigo  or  spirit?"  "Did 
he  believe  the  spirit  to  be  embodied  in  human  flesh?"  "Was  it  the 
prisoner's  belief  that  the  Wendigo  could  be  killed  by  a  bullet  shot 
from  a  rifle?"  "Was  the  prisoner  sane,  apart  from  the  delusion  or 
belief  in  the  existence  of  a  Wendigo?" 

The  learned  trial  judge  then  proceeded  with  his  charge  as  follows: 

"Assuming  these  facts  to  be  found  by  you,  I  think  I  must  direct 
you  as  a  matter  of  law  that  there  is  no  justification  here  for  the  killing; 
and  culpable  homicide  without  justification  is  manslaughter,  so  that, 
unless  you  can  suggest  to  yourselves  something  stated  in  the  evidence 
or  drawn  from  the  evidence  to  warrant  a  different  conclusion,  I  think 
it  will  be  your  duty  to  return  a  verdict  of  manslaughter.  You  may 
confer  among  yourselves,  if  you  please,  and  if  you  take  that  view  I 
will  reserve  a  case  for  consideration  by  the  Court  of  Appeal  as  to 
whether  he  was  properly  convicted  upon  this  evidence." 

The  jury  found  the  prisoner  guilty  of  manslaughter,  recommend- 
ing him  to  mercy,  and  the  learned  judge  reserved  a  case  for  considera- 
tion whether  upon  the  findings  of  the  jury  in  answer  to  the  questions 
he  had  submitted,  and  upon  his  direction  to  them,  and  upon  the  evi- 
dence, the  prisoner  was  properly  found  guilty  of  manslaughter. 

The  case  was  argued  on  February  8,  1897,  before  a  divisional 
court  composed  of  Armour,  C.  J.,  and  Faixonbridge,  and  Street,  JJ. 
J.  K.  Kerr,  Q.  C,  for  the  prisoner.1 

John  Cartwright,  Q.  C,  Deputy  Attorney  General,  was  not  called  on. 

The  judgment  of  the  court  was  delivered  by  Armour,  C.  J. 

Upon  the  case  reserved,  if  there  was  evidence  upon  which  the  jury 
could  find  the  prisoner  guilty  of  manslaughter,  it  is  not  open  to  us 
to  reverse  that  finding,  and  the  question  we  have  to  decide  is  whether 
there  was  such  evidence. 

We  think  there  was,  and  therefore  do  not  see  how  we  can  say  that 
the  prisoner  was  not  properly  convicted  of  manslaughter. 


STATE  v.  NASH. 
(Supreme  Court  of  North  Carolina,  1883.     88  N.  C.  618.) 

Indictment  for  assault  and  battery,  tried  at  the  Fall  term,  1882,  of 
Richmond  superior  court,  before  Gilmer,  J. 

The  defendant  was  put  upon  the  stand  as  a  witness  in  his  own 
behalf,  admitted  that  he  fired  the  gun  at  the  crowd,  and  proposed  to 

i  The  argument  of  counsel  for  the  defendant  is  omitted. 


140  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Ch.  5 

prove  that,  before  he  fired,  his  child,  who  was  sleeping  near  a  win- 
dow in  the  house,  through  which  the  noise  of  the  bells  and  horns 
and  firing  was  heard  and  the  flash  of  the  firing  seen,  rose  up  and  ran 
to  the  witness  with  blood  on  her  face  (caused,  as  he  afterwards 
learned,  but  did  not  then  know,  by  her  running  against  the  end  of 
a  table),  and  under  the  impulse  of  the  moment,  believing  that  she 
had  been  shot,  he  got  his  gun  and  went  to  the  door,  and,  seeing 
the  flash  of  pistols,  fired,  as  he  supposed,  by  the  retreating  crowd, 
fired  his  gun  at  and  into  the  crowd.  This  evidence  was  objected  to 
by  the  state  and  excluded  by  the  court,  and  the  defendant  excepted. 

The  court  instructed  the  jury  that  the  defendant  had  not  shown 
justification  for  the  shooting.  Verdict  of  guilty;  judgment;  appeal 
by  the  defendant.1 

Ashe,  J.  The  question  presented  by  the  record  is,  was  there  error 
in  the  refusal  of  the  judge  to  receive  the  evidence  offered  by  the  de- 
fendant? We  are  of  the  opinion  there  was  error  in  rejecting  so  much 
of  the  proposed  testimony  as  tended  to  show,  on  the  part  of  the  de- 
fendant, a  reasonable  ground  of  belief  that  the  trespassers  upon  his 
premises  had  fired  into  his  house  and  wounded  his  child. 

It  may  be,  as  testified  by  the  prosecutor,  that  the  band  of  young 
men  who  went  to  the  defendant's  house  on  the  night  in  question  only 
intended  innocent  amusement ;  but  there  is  one  unusual  and  rather  ex- 
traordinary feature  in  the  transaction — that  the  party  intending  a 
mere  serenade  should,  on  such  an  occasion,  carry  guns  and  pistols. 
They  are  certainly  very  unusual  instruments  of  music  in  the  hands 
even  of  a  calithumpian  band. 

They  entered  the  inclosure,  20  in  number,  and  marched  round  the 
house,  blowing  horns,  ringing  bells,  and  firing  guns  and  pistols,  which 
must  have  greatly  frightened  the  family  and  the  defendant  himself, 
unless  he  is  a  man  of  more  than  ordinary  courage.  But,  whether  awed 
or  not  by  such  a  display  of  numbers  and  lawlessness,  yielding  to  the 
dictates  of  prudence,  he  submitted  to  the  humiliating  indignity  and 
remained  within  doors  until  his  little  daughter,  as  he  proposed  to 
show,  ran  to  him  with  her  face  bleeding;  and  believing,  as  was 
natural  under  the  circumstances,  that  she  had  been  shot,  he  seized 
his  gun  and  went  to  the  door,  saw  the  flash  of  firearms,  shot  into  the 
crowd,  and  wounded  the  prosecutor.  We  must  suppose  it  was  all 
the  work  of  an  instant.  Did  the  defendant,  under  these  circumstances, 
have  reasonable  ground  to  believe  that  his  daughter  had  been  shot, 
and  the  assault  upon  him  and  his  house  was  continuing?  If  he  had, 
then  he  ought  to  have  been  acquitted. 

We  know  this  has  been  a  much  mooted  question,  but  upon  an  in- 
ation  of  the  authorities  our  conclusion  is  that  a  reasonable  be- 
lief thai  a  felony  is  in  the  act  of  being  committed  on  one  will  excuse 
the  killing  of  the  SUppO  ed   assailant,  though  no  felony  was  in   fact 

i  The  statement  <>r  facta  is  abridged. 


Sec.  2)  IGNORANCE    OR    MISTAKE    OF    FACT.  141 

intended;  and  whatever  will  excuse  homicide  will,  of  course,  excuse 
assault  and  battery. 

In  State  v.  Scott,  26  N.  C.  409,  42  Am.  Dec.  148,  the  court  says: 
"In  consultation  it  seemed  to  us  at  one  time  that  the  case  might  prop- 
erly have  been  left  to  the  jury,  favorably  to  the  prisoner,  on  the  prin- 
ciple of  Levet's  Case,  Cro.  Car.  538,  1  Hale,  474,  which  is  that  if  the 
prisoner  had  reasonable  ground  for  believing  that  the  deceased  in- 
tended to  kill  him,  and  under  that  belief  slew  him,  it  would  be  ex- 
cusable, or,  at  most,  only  manslaughter,  though  in  truth  the  deceased 
had  no  such  design  at  the  time."  It  is  to  be  noted  that  Levet  was 
acquitted.  But  the  court  did  not  give  the  prisoner,  in  Scott's  Case, 
the  benefit  of  the  principle,  for  the  reason  that  no  such  instruction 
had  been  asked  in  the  court  below ;  the  court  concluding  that  the 
prisoner  would  have  requested  the  instruction,  if  he  had  acted  upon 
such  belief,  and  there  were,  besides,  other  circumstances  in  the  case 
which  prevented  the  application  of  the  principle.  But  it  is  clearly 
to  be  deduced  from  the  opinion  of  Chief  Justice  Ruffin,  who  spoke 
for  the  court,  that  in  a  proper  case  the  principle  might  be  invoked 
to  excuse  a  defendant.  See,  also,  Patterson  v.  People,  46  Barb.  (N. 
Y.)  627. 

The  same  doctrine  was  enunciated  by  Parker,  J.,  afterwards  Chief 
Justice  of  the  Supreme  Court  of  Massachusetts,  in  the  famous  case 
of  Commonwealth  v.  Selfridge,  Self.  Trial,  100,  and  the  principle 
is  thus  illustrated :  "A.,  in  the  peaceful  pursuit  of  his  affairs,  sees 
B.  walking  towards  him  with  an  outstretched  arm  and  a  pistol  in 
his  hand,  and  using  violent  menaces  against  his  life  as  he  advances. 
Having  approached  near  enough  in  the  same  attitude,  A.,  who  has 
a  club  in  his  hand,  strikes  B.  over  the  head  before  or  at  the  same 
instant  the  pistol  is  fired,  and  of  the  wound  B.  dies.  It  turned  out 
that  the  pistol  was  in  fact  loaded  with  powder  only,  and  that  the  real 
design  of  B.  was  only  to  terrify  A."  The  judge  inquired:  "Will 
any  reasonable  man  say  that  A.  is  more  criminal  that  he  would  have 
been  if  there  had  been  a  ball  in  the  pistol?"  2  Whar.  Crim.  Law,  § 
1026  (g),  and  note;   Whar.  Law  of  Homicide,  215  et  seq. 

But  it  may  be  objected  that  the  defendant  acted  too  rashly.  Be- 
fore he  resorted  to  the  use  of  his  gun,  he  should  have  taken  the  pre- 
caution to  ascertain  the  fact  whether  his  child  had  been  actually  shot. 
But  that  doctrine  is  inconsistent  with  the  principle  we  have  announced. 
If  the  defendant  had  reason  to  believe  and  did  believe  in  the  danger, 
he  had  the  right  to  act  as  though  the  danger  really  existed  and  was 
imminent.  Taking,  then,  the  fact  to  be  that  the  trespassers  had  fired 
into  the  defendant's  house  and  shot  his  child,  and  the  firing  continued, 
there  was  no  time  for  delay.  The  occasion  required  prompt  action. 
The  next  shot  might  strike  him  or  some  other  member  of  his  family. 
Under  these  circumstances  the  law  would  justify  the  defendant  in 
firing  upon  his  assailants  in  defense  of  himself  and  his  family. 

But,  as  we  have  said,  the  grounds  of  belief  must  be  reasonable. 


142  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Ch.  5 

The  defendant  must  judge,  at  the  time,  of  the  ground  of  his  appre- 
hension, and  he  must  judge  at  his  peril;  for  it  is  the  province  of  the 
jury  on  the  trial  to  determine  the  reasonable  ground  of  his.  belief. 
And  here  the  error  is  in  the  court's  refusing  to  receive  the  proposed 
evidence,  and  submitting  that  question  to  the  consideration  of  the 
jury.    A  venire  de  novo  must  be  awarded.2 

Smith,  C.  J.  (dissenting).  I  am  unable  to  concur  with  the  other 
members  of  the  court  in  the  conclusion  reached  that  the  testimony 
of  the  defendant  in  explanation  of  his  conduct,  if  admitted  and  be- 
lieved, would  be  a  defense  to  the  charge,  or  have  any  other  legal 
effect  than  to  mitigate  his  offense;  and  hence,  as  immaterial  upon 
the  issue  and  tending  to  mislead,  there  is  no  error  in  rejecting  it. 

The  facts  in  connection  with  this  proposed  statement  are  sum- 
marily as  follows:  A  boisterous  and  unruly  crowd,  in  what  seems 
to  have  been  a  frolic,  enter  the  defendant's  premises  in  the  early 
night  with  bells,  horns,  and  firearms,  by  the  noise  of  which  as  they 
pass  round  his  dwelling  himself  and  his  family  are  greatly  annoyed 
and  their  peace  disturbed.  As  they  are  about  to  leave,  his  little 
frightened  daughter  runs  up  to  him  with  blood  upon  her  face,  caused 
by  her  striking  against  a  table,  but  which  he  then  supposed  to  pro- 
ceed from  a  shot  wound.  Acting  upon  the  impulse  produced  by 
this  misconception,  and  without  stopping  to  make  inquiry  as  to  the 
cause  or  extent  of  the  inquiry  [injury?],  he  seizes  his  gun,  loaded  with 
shot  of  large  size,  hastens  to  the  door  and  out  into  the  porch,  and,  see- 
ing the  flash  of  the  gun,  fires  into  the  retreating  body,  then  near  the 
outer  gate,  some  35  yards  distant,  without  a  word  of  warning  or 
remonstrance,  and  wounds  one  of  the  number  in  the  leg. 

This  was,  in  my  opinion,  a  hasty  and  unauthorized  act  in  the  use 
of  a  deadly  weapon,  not  in  defense  of  himself  or  family  or  premises. 
but  the  offspring  of  a  spirit  of  retaliation  for  what  he  erroneously 
supposed  to  have  been  done,  and  whose  error  could  have  at  once 
been  corrected.  If  death  had  ensued,  the  circumstances  would  not 
have  excused  the  homicide,  and,  as  it  was  not  fatal,  it  cannot  be  less 
than  an  assault. 

Tinman  life  is  too  safely  guarded  by  law  to  allow  it  to  be  put  in 
peril  upon  such  provocation,  and,  however  much  it  may  palliate  the 
defendant's  impulse  and  the  rash  act  in  which  it  resulted,  it  cannot, 
in  my  opinion  e  his  use  of  a  deadly  instrument  in  so  reckless 

a  manner. 

I'm:  Curiam.    Venire  de  novo. 

i  Accord:  Reg.  \  Rose,  15  Cox,  C.  C.  540  (1884).  Ct.  Isliam  v.  State,  ante, 
I..  M  ;  stun-  v.  I>.»wns.  91  Mo.  19,  3  S.  W.  219  (188?). 


Sec.  3) 


INFANCY. 


SECTION  3.— INFANCY. 


143 


Item. — A  girl  of  thirteen  years  of  age  was  burnt  because  while 
she  was  servant  to  a  woman  she  killed  her  mistress ;  and  it  was 
found  to  be  so  and  adjudged  treason.  And  it  was  said  that  by  the 
old  law  no  one  under  age  was  hung,  or  suffered  judgment  of  life  or 
limb.  But  Spigurnel  found  that  an  infant  of  ten  years  of  age  killed 
his  companion  and  concealed  him ;  and  he  caused  him  to  be  hung,  be- 
cause by  the  concealment  he  showed  that  he  knew  how  to  distinguish 
between  evil  and  good.  And  so  malice  makes  up  for  age.  Year  Book, 
12  Edward  III,  626. 


GODFREY  v.  STATE. 

(Supreme  Court  of  Alabama,  1858.     31  Ala.  323.) 

Walker,  J.1  The  single  point  to  be  considered  in  this  case  is  I 
whether  the  charge  of  the  court  below  to  the  jury  was  correct.  An 
analysis  of  that  charge  shows  that  the  jury  were  strictly  instructed 
that  the  defendant,  being  between  seven  and  fourteen  years  of  age, 
was  prima  facie  incapable  of  committing  crime ;  that,  to  overturn  the 
intendment  in  favor  of  his  incapacity  to  commit  crime,  the  jury  must 
be  convinced  from  the  evidence  beyond  a  reasonable  doubt,  after  al- 
lowing due  consideration  to  the  fact  that  the  accused  was  a  negro  and 
a  slave,  that  he  knew  fully  the  nature  of  the  act  done  and  its  conse- 
quences; and  that  he  showed  plainly  intelligent  design  and  malice 
in  the  execution  of  the  act.  This  charge,  after  an  anxious  and  care- 
ful examination  of  it,  we  cannot  pronounce  erroneous. 

An  infant,  above  seven,  but  under  fourteen,  years  of  age,  is  pre- 
sumed not  to  have  such  knowledge  and  discretion  as  would  make  him 
accountable  for  a  felony  committed  during  that  period.  But,  if  that 
presumption  is  met  by  evidence  clearly  proving  the  existence  of  that 
knowledge  and  discretion  deemed  requisite  to  a  legal  accountability,  the 
reason  for  allowing  an  immunity  from  punishment  ceases,  and  with 
it  the  rule  which  grants  such  immunity  ceases.  There  are  many  cases 
where  children  between  those  ages,  being  shown  to  have  been  cogni- 
zant of  the  criminal  nature  of  the  act  done,  have  been  punished  un- 
der the  criminal  law.  A  girl,  thirteen  years  of  age,  was  executed  for 
killing  her  mistress.  Two  boys,  one  nine,  and  the  other  ten,  years 
of  age,  were  convicted  of  murder,  because  one  of  them  hid  himself, 
and  the  other  hid  the  dead  body,  thus  manifesting  as  was  supposed. 
a  consciousness  of  guilt  and  a  discretion  to  discern  between  good  and 


i  The  opinion  only  is  printed. 


144  INTENT    AS   AFFECTED    BY   CONDITIONS.  (Ch.  5 

evil.  A  boy  of  eight  years  of  age,  who  had  malice,  revenge,  and  cun- 
ning, was  hanged  for  firing  two  barns.  A  boy  ten  years  old,  who 
showed  a  mischievous  discretion,  was  convicted  of  murdering  his  bed- 
fellow.   4  Bl.  Com.  23,  24. 

In  the  case  of  Rex  v.  Owen,  2  Car.  &  P.  236,  it  was  referred  to  the 
jury  to  determine  whether  the  act  of  a  girl  ten  years  old,  alleged  to 
constitute  a  larceny,  was  known  by  her  to  be  wrong  when  it  was  done ; 
and  upon  that  question  she  was  acquitted.  It  is  said  in  Hale's  Pleas 
of  the  Crown,  p.  22,  that  one  between  the  ages  of  seven  and  fourteen 
might  be  convicted  of  a  capital  offense,  "if  it  appeared  by  strong  and 
pregnant  evidence  and  circumstances  that  he  was  perfectly  conscious 
of  the  nature  and  malignity  of  the  crime."  In  an  American  case  the 
same  principle  is  thus  stated:  "If  it  shall  appear  by  strong  and  ir- 
resistible evidence  that  he  had  sufficient  discernment  to  distinguish 
good  from  evil,  to  comprehend  the  nature  and  consequences  of  his 
acts,  he  may  be  convicted,  and  have  judgment  of  death."  State  v. 
Aaron,  4  N.  J.  Law,  231,  7  Am.  Dec.  592.  In  that  case  a  negro  boy, 
who  was  a  slave,  of  eleven  years,  was  convicted  of  murder ;  but  a  new 
trial  was  granted  on  account  of  an  erroneous  ruling  as  to  the  compe- 
tency of  a  witness,  and  it  does  not  appear  what  farther  was  done  in 
the  case. 

In  the  case  of  State  v.  Guild,  10  N.  J.  Law,  163,  18  Am.  Dec.  404, 
a  negro  slave,  of  less  than  twelve  years,  was  convicted  of  murder ;  and 
the  report  of  the  case  informs  us  that  the  defendant  was  executed. 
In  that  case  the  court  dissenting  from  the  cautious  statement  of  the 
law  found  in  1  Hale's  Pleas  of  the  Crown,  p.  27,  permitted  a  convic- 
tion upon  confessions.  In  this  case,  although  a  confession  was  given 
in  evidence,  the  facts  proved  established  the  guilt  of  the  accused  so 
clearly  that  it  is  fairly  inferable  that  no  importance  was  attached  to 
it  by  the  court  or  jury,  and  its  effect  is  not  noticed  in  the  charge.  The 
question  whether  a  conviction  could  be  had  upon  confessions  does  not 
arise,  and  we  do  not  commit  ourselves  to  the  doctrine  of  the  decision 
last  above  cited  upon  that  point. 

All  the  authorities  concur  in  maintaining  the  correctness  of  the 
propositions  of  law  involved  in  the  charge.  Bishop  on  Criminal  Law, 
285;  1  Archbold's  Crim.  PI.  3,  4,  5,  and  notes;  1  Rus- 
n  Crimes,  3,  4,  5;  Roscoe's  Crim.  Ev.  942,  94  1  ;  Wharton's  Am. 
Crim.  Law,  51;  1  Wheeler's  Crim.  Cases,  231-231,  Reason,  human- 
ity, and  the  law  alike  required  that  the  court  should,  in  its  charge, 
throw  around  the  jury  every  guard  and  restriction  necessary  to  pre- 
vent an  improper  conviction  in  such  a  case.  This  has  been  carefully 
done  by  the  court  in  this  case,  and  we  are  bound  to  pronounce  a  full 
approval  of  the  chai 

The  judgnu  nt  mi'  the  i  ity  court  is  affirmed,  and  its  sentence  must  be 
cuted.a 

cord:    When  the  offense  charged  i«  a  misdemeanor:     Vagrancy,  <'<>ni- 
monwealth  v.  McKeagy,   i   Ashm.  (Pa.)  248   (1828);    battery,   State  v.  Goto, 


Il\  I  r- 


Sec.  4)  INSANITT.  145 

SECTION  4.— INSANITY. 

"jpi ' 

Nota  reader,  every  act  which  a  man  non  compos  doth  either  con- 
cerns his  life,  his  lands,  or  his  goods.  *  *  *  As  to  his  life,  the 
law  of  England  is  that  he  shall  not  lose  his  life  for  felony  or  murder, 
because  the  punishment  of  a  felon  is  so  grievous.     *    *    * 

2.  No  felony  or  murder  can  be  committed  without  a  felonious  in- 
tent and  purpose.  *  *  *  Also,  for  the  same  reason,  non  compos 
mentis  cannot  commit  petit  treason,  as  if  a  woman  non  compos  mentis 
kills  her  husband,  as  appears  12  Hen.  Ill,  "Forfeiture,"  33.  But  in 
some  cases  non  compos  mentis  may  commit  high  treason,  as  if  he  kills, 
or  offers  to  kill,  the  king,  it  is  high  treason,  for  the  king  est  caput  et 
salus  reipublicse,  et  a  capite  bona  valetudo  transit  in  omnes;  and  for 
this  reason  their  persons  are  so  sacred  that  none  can  offer  them  any 
violence,  but  he  is  reus  criminis  lsesae  majestatis,  et  pereat  unus  ne 
pereant  omnes.  And  it  must  be  known  that  there  are  four  manners 
of  non  compos  mentis:  (1)  Idiot  or  fool  natural;  (2)  he  who  was 
of  good  and  sound  memory,  and  by  the  visitation  of  God  has  lost  it; 
(3)  lunaticus,  qui  gaudet  lucidis  intervallis,  and  sometimes  is  of  good 
and  sound  memory,  and  sometimes  non  compos  mentis;  (4)  by  his 
own  act,  as  a  drunkard. 

Beverley's  Case  (1603)  4  Coke,  p.  124. 


McNAGHTEN'S  CASE. 

(House  of  Lords,  1843,  10  Clark  &  F.  200.) 

Daniel  McNaghten  having  been  tried  in  the  Central  Criminal  Court 
for  the  murder  of  Edward  Drummond,  the  jury  returned  a  verdict 
"not  guilty"  on  the  ground  of  insanity. 

This  verdict  and  the  question  of  the  nature  and  extent  of  the  un- 
soundness of  mind  which  would  excuse  the  commission  of  a  felony 
of  this  sort  having  been  made  the  subject  of  debate  in  the  House  of 
Lords,  it_was  determined  to  take  the  opinion  of  the  judges  on  the 
law  governing  sucITcases:  Accordingly,  on  the  26th  of  May  all  the 
judges  attended  their  lordships,  but  no  questions  were  then  put. 

9  Humph.  (Tenn.)  175  (1848) ;    illegal  sale  of  liquor,  Commonwealth  v.  Mead, 
92  Mass.  398  (1S65). 

"No  person  shall  in  any  case  be  convicted  of  any  offense  committed  before 
he  was  of  the  age  of  nine  years ;  nor  of  any  offense  committed  between  the 
years  of  nine  and  thirteen  unless  it  shall  appear  by  proof  that  he  had  dis- 
cretion to  understand  the  nature  and  illegality  of  the  act  constituting  the 
offense."    Pen.  Code  Tex.  art.  34. 

Section  283  of  the  Criminal  Code  of  Illinois  fixes  the  age  at  which  crim- 
inal responsibility  attaches  at  ten  years. 
Mik.Cr.L.— 10 


116  INTENT   AS   AFFECTED    BT    CONDITIONS.  (Cll.  5 

On  the  19th  of  June  the  judges  again  attended  the  House  of  Lords, 
when  (no  argument  having  been  had)  the  following  questions  of  law 
were  propounded  to  them.1 

Lord  Chief  Justice  Tindall.  The  first  question  proposed  by  your 
lordships  is  this:  "What  is  the  law  respecting  alleged  crimes  com- 
mitted by  persons  afflicted  with  insane  delusion  in  respect  of  one  or 
more  particular  subjects  or  persons;  as,  for  instance,  where  at  the 
time  of  the  commission  of  the  alleged  crime  the  accused  knew  he  was 
acting  contrary  to  law,  but  did  the  act  complained  of  with  a  view, 
under  the  influence  of  insane  delusion,  of  redressing  or  revenging 
some  supposed  grievance  or  injury,  or  of  producing  some  supposed 
public  benefit?" 

In  answer  to  which  question,  assuming  that  your  lordships'  in- 
quiries are  confined  to  those  persons  who  labor  under  such  partial 
delusions  only,  and  are  not  in  other  respects  insane,  we  are  of  opin- 
ion that,  notwithstanding  the  party  accused  did  the  act  complained 
of  with  a  view,  under  the  influence  of  insane  delusion,  of  redressing 
or  avenging  some  supposed  grievance  or  injury,  or  of  producing  some 
public  benefit,  he  is  nevertheless  punishable  according  to  the  nature 
of  the  crime  committed,  if  he  knew  at  the  time  of  committing  such 
crime  that  he  was  acting  contrary  to  law,  by  which  expression  we 
understand  your  lordships  to  mean  the  law  of  the  land. 

Your  lordships  are  pleased  to  inquire  of  us,  secondly:  "What 
are  the  proper  questions  to  be  submitted  to  the  jury,  where  a  per- 
son alleged  to  be  afflicted  with  insane  delusion  respecting  one  or 
more  particular  subjects  or  persons  is  charged  with  the  commission 
of  a  crime  (murder,  for  example),  and  insanity  is  set  up  as  a  de- 
fense?" And,  thirdly:  "In  what  terms  ought  the  question  to  be  left 
to  the  jury  as  to  the  prisoner's  state  of  mind  at  the  time  when  the 
act  was  committed?"  And  as  these  two  questions  appear  to  us  to  be 
more  conveniently  answered  together,  we  have  to  submit  our  opin- 
ion to  be  that  the  jurors  ought  to  be  told  in  all  cases  that  every  man 
is  to  be  presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of 
reason  to  be  responsible  for  his  crimes,  until  the  contrary  be  proved 
to  their  satisfaction,  and  that  to  establish  a  defense  on  the  ground 
of  insanity  it  must  be  clearly  proved  that  at  the  time  of  the  commit- 
ting of  the  act  the  party  accused  was  laboring  under  such  a  defeel 
of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that  he  did  not 
know  he  was  doing  what  was  wrong.  The  mode  of  putting  the  latter 
part  of  the  'I11  foil  to  the  jury  on  these  occasions  has  generally  been 
whether  the  accused  al  the  time  of  doing  the  act  knew  the  difference 
between  righl  and  wrong,  which  mode,  though  rarely,  if  ever,  lead- 
ing to  any  mistake  with  the  jury,  is  not,  as  we  conceive,  so  accurate 
when  put  generally  and  in  the  abstract,  as  when  put  with  reference  to 

t  The  QDMttoni  appear  in  the  opinion. 


Sec.  4)  INSANITY.  147 

the  party's  knowledge  of  right  and  wrong  in  respect  to  the  very  act 
with  which  he  is  charged.  If  the  question  were  to  be  put  as  to  the 
knowledge  of  the  accused  solely  and  exclusively  with  reference  to 
the  law  of  the  land,  it  might  tend  to  confound  the  jury,  by  inducing 
them  to  believe  that  an  actual  knowledge  of  the  law  of  the  land  was 
essential  in  order  to  lead  to  a  conviction ;  whereas,  the  law  is  admin- 
istered upon  the  principle  that  every  one  must  be  taken  conclusively 
to  know  it,  without  proof  that  he  does  know  it.  If  the  accused  was 
conscious  that  the  act  was  one  which  he  ought  not  to  do,  and  if  that 
act  was  at  the  same  time  contrary  to  the  law  of  the  land,  he  is  pun- 
ishable; and  the  usual  course,  therefore,  has  been  to  leave  the  ques- 
tion to  the  jury  whether  the  party  accused  had  a  sufficient  degree 
of  reason  to  know  that  he  was  doing  an  act  that  was  wrong;  and 
this  course  we  think  is  correct,  accompanied  with  such  observations 
and  explanations  as  the  circumstances  of  each  particular  case  may 
require. 

The  fourth  question  which  your  lordships  have  proposed  to  us  is 
this :  "If  a  person,  under  an  insane  delusion  as  to  existing  facts,  com- 
mits an  offense  in  consequence  thereof,  is  he  thereby  excused?"  To 
which  question  the  answer  must,  of  course,  depend  on  the  nature  of 
the  delusion ;  but,  making  the  same  assumption  as  we  did  before, 
namely,  that  he  labors  under  such  partial  delusion  only,  and  is  not 
in  other  respects  insane,  we  think  he  must  be  considered  in  the-same 
situation  as_tQ_responsibility  as  ifjthe  facts  with  respect  to_jwhjch  the 
delusion  exists  were  real.  'FoT_ex^mple,~if,'^under  the  influence  of 
his  delusion,  he  supposes  another  man  to  be  injiie  act  of  attempting 
to  take  away  hisjife,  and_  he  kills  thjtjiiai]^_as_Jie  ^upposes^_jn  ^elf- 
defense,  he  would  be  ex^mpt^r^mjamishment.  IT  his  delusion  was 
that  the  deceased  had  inflictedaT  serious  injury  to  his  character  and 
fortune,  and  he  killed  him  in  revenge  for  such  supposed  injury,  he 
would  be  liable  to  punishment.2 

The  question  lastly  proposed  by  your  lordships  is:  "Can  a  medical 
man,  conversant  with  the  disease  of  insanity,  who  never  saw  the 
prisoner  previously  to  the  trial,  but  who  was  present  during  the  whole 
trial  and  the  examination  of  all  the  witnesses,  be  asked  his  opinion 
as  to  the  state  of  the  prisoner's  mind  at  the  time  of  the  commission 
of  the  alleged  crime,  or  his  opinion  whether  the  prisoner  was  con- 
scious at  the  time  of  doing  the  act  that  he  was  acting  contrary  to 
law,  or  whether  he  was  laboring  under  any,  and  what,  delusion  at 
the  time?"  In  answer  thereto,  we  state  to  your  lordships  that  we 
think  the  medical  man,  under  the  circumstances  supposed,  cannot  in 
strictness  be  asked  his  opinion  in  the  terms  above  stated,  because 
each  of  those  questions  involves  the  determination  of  the  truth  of  the 
facts  deposed  to,  which  it  is  for  the  jury  to  decide,  and  the  ques- 
tions are  not  mere  questions  upon  a  matter  of  science,  in  which  case 

2  Accord:    As  to  delusion,  State  v.  Lyons,  113  La.  959,  37  South.  890  (1904). 


148  INTENT   AS    AFFECTED   BY   CONDITIONS.  (Ch.  5 

such  evidence  is  admissible.  But  where  the  facts  are  admitted  or  not 
disputed,  and  the  question  becomes  substantially  one  of  science  only, 
it  may  be  convenient  to  allow  the  question  to  be  put  in  that  general 
form,  though  the  same  cannot  be  insisted  on  as  a  matter  of  right.3 


HOTEMA   v.   UNITED   STATES. 

(Supreme  Court  of  the  United  States,  1901.     1S6  U.  S.  413,  22  Sup.  Ct.  895, 

46  L.  Ed.  1225.) 

Mr.  Justice  Peckham  delivered  the  opinion  of  the  court.* 
In  regard  to  the  subject  of  delusion  the  court  charged: 
"There  is  evidence  in  this  case  tending  to  show  that  Hotema  be- 
lieved in  witches,  and  that  that  was  taught  by  the  Bible,  and  had  the 
belief  that  his  people  and  tribe  were  being  affected  by  witches,  and  that 
the  deaths  that  were  occurring  in  the  neighborhood  were  due  to  the  evil 
influence  of  witches,  and  that  the  party  he  slew  was  a  witch.  Upon 
this  phase  of  the  case  you  are  instructed  that  if  the  evidence  shows 
that  the  defendant,  Hotema,  believed  in  witches,  and  that  it  was  the 
result  of  his  investigation  and  belief  as  to  what  the  Scriptures  taught. 
and  that  he  acted  upon  that  belief,  thinking  he  had  the  right  to  kill 
the  party  he  is  charged  with  killing,  because  he  thought  she  was  a 
witch,  but  at  the  time  he  knew  it  was  a  violation  of  human  law  and  he 
would  be  punished  therefor,  in  that  event  it  would  not  be  an  insane 
delusion  upon  the  part  of  Hotema,  but  would  be  an  erroneous  con- 
clusion, and,  being  so,  would  not  excuse  him  from  the  consequences 
of  his  act;  and  also,  if  you  further  believe  that  he  came  to  the  conclu- 
sion from  his  investigation  and  understanding  of  the  Scriptures  that 
this  party  was  a  witch,  and  that  the  defendant  also  used  spirituous 
liquors,  and  these  two  combined  were  the  cause  or  causes  that  led  him 
to  commission  of  the  act,  and  that  either  or  both  of  these  were  tin 
sole  inducement  that  caused  him  to  do  the  act,  he  would  not  be  guilt- 
less and  would  be  responsible  therefor.  Upon  the  other  hand,  I 
charge  you  that  if  you  should  find  from  the  evidence  in  this  case  that 
Solomon  Hotema,  the  defendant,  believed  that  there  were  witches,  and 
that  he  had  a  right  to  kill  them,  and  if  you  further  find  that  such  be- 
lief was  the  product  of  a  diseased  brain,  or  if  you  have  a  reasonable 

•  The  proceedings  of  the  trial  court  nnd  the  opinion  of  Maule,  J.,  are 
omitted. 

"An  Insane  delusion  Is  never  the  result  of  reasoning  and  reflection.  It  is  not 
generated  by  them,  and  11  cannol  be  dispelled  by  them.  A  man  may  reason 
himself,  and  be  reasoned  by  others,  Into  absurd  opinions,  and  may  be  persuad- 
ed Into  Impracticable  schemes  .'11111  vicious  resolutions,  but  he  cannol  be  rea- 
soned or  persuaded  Into  insanity  or  insane  delusions.  Whenever  convictions 
are  founded  on  evidence,  or  comparisons  of  facts  and  opinions  and  arguments, 
they  are  not  Insane  delusions."  Oox,  J.,  In  Quiteau's  Case  (i>.  0.)  10  red.  101 
(1882). 

1  Pa  it  of  the  opinion  is  oinii  ted. 


Sec.  4)  INSANITY.  149 

doubt  that  such  condition  of  brain  existed  at  the  time  of  the  homicide, 
and  that  his  act  was  the  result  of  such  diseased  brain,  you  will  acquit 
him. 

"In  this  case  you  are  to  determine  the  following  questions: 

"(1)  Was  the  defendant,  Hotema,  at  the  time  he  committed  tin 
homicide  charged,  laboring  under  an  insane  delusion  produced  by  an 
impaired  brain,  and  did  it  go  to  the  extent  for  the  time  being  of  con- 
trolling his  will  power,  reflection,  reason,  and  judgment,  and  was  the 
homicide  committed  by  reason  of  such  insane  delusion?  If  the  proof 
has  shown  beyond  a  reasonable  doubt  that  such  was  not  the  case,  you 
will  convict  the  defendant;  but  if  there  is  a  reasonable  doubt  as  to 
such  mental  condition  you  will  resolve  such  doubt  in  favor  of  the  de- 
fendant and  acquit  him. 

"(2)  Did  Hotema  commit  the  homicide,  not  laboring  under  an  in- 
sane delusion,  but  believing  that  by  teachings  of  the  Bible  he  had  the 
right  to  kill  the  party  he  did  kill  because  he  thought  she  was  a  witch, 
and  at  the  time  of  such  killing  he  performed  the  same  solely  upon- such 
belief,  and  was  not  laboring  under  an  insane  delusion?  If  you  be- 
lieve this  state  of  case  existed,  and  so  believe  it  beyond  a  reasonable 
doubt,  you  will  find  the  defendant  guilty  as  charged  in  this  indict- 
ment; but  if  you  have  a  reasonable  doubt  in  regard  thereto  you  will 
acquit  the  defendant." 

Upon  the  condition  of  mind  of  defendant  regarding  witches,  the 
court  held  that  if  his  belief  in  witches  and  his  right  to  kill  them  were 
the  product  of  a  diseased  brain  he  was  irresponsible,  and  if  the  jury 
had  a  reasonable  doubt  on  that  question  !F~shour6Tacquit.  If  his  belief 
were  not  the  product  of_an  insane  delusion,  but  simply  an  erroneous 
conclusion  of  a  sane  mind,  he  was,  as  the  court  charged,  responsible. 

The  courtfby  the~portions  of  the  charge  above  adverted  to,  direct- 
ed the  attention  of  the  jury  to  the  distinction  between  a  mere  errone- 
ous opinion  and  an  insane  delusion,  the  product  of  a  diseased  mind  or 
brain.  The  subject  is  somewhat  difficult,  and  the  line  of  distinction 
not  always  easily  drawn ;  but  it  exists,  and  we  think  that  in  this  case 
the  condition  of  mind  which  would  render  the  defendant  irresponsible 
was  sufficiently  and  properly  indicated  by  the  court  in  its  charge.  It 
assumed  that  defendant  might  have  formed  an  erroneous  opinion  re- 
garding witches  and  witchcraft,  and  yet  might  not  have  been  insane 
within  the  legal  definition,  and  therefore,  although  possessing  such 
erroneous  ideas  and  acting  on  them,  he  might  still  be  responsible 
criminally  for  his  actions;  and,  on  the  other  hand,  if  his  opinion  on 
the  subject  were  the  result  of  insane  delusions,  and  he  acted  on  them, 
he  was  irresponsible,  and  responsibility  must  be  proved  beyond  a  rea- 
sonable doubt.    We  think  this  was  all  the  defendant  could  require. 

The  judgment  must  be  affirmed. 


150  INTENT   AS   AFFECTED"  BY    CONDITIONS.  (Ch.  5 

COMMONWEALTH  v.  MOSLER. 

(Oyer  and  Terminer  of  Philadelphia,  1S46.     4  Pa.  264.) 

The  prisoner  was  indicted  for  the  murder  of  Eve  Mosler,  his  wife. 
The  evidence  being  closed,  after  argument  by  Stokes,  and  Read,  At- 
torney General,  for  the  commonwealth,  and  Barnes  and  Barton  for 
the  defense,  the  jury  was  charged  as  follows:1 

Gibson,  C.  J.  The  fact  of  the  killing  is  not  denied.  Two  points  of 
defense  have  been  set  up :  The  first,  that  of  insanity,  implying  an  en- 
tire deprivation  on  the  part  of  the  prisoner  of  the  power  of  self-con- 
trol, and  constituting  a  complete  defense  to  the  charge;  the  second, 
that  of  temporary  fury  induced  by  adequate  provocation,  reducing  the 
offense  to  manslaughter.  The  first,  if  sustained,  will  acquit  him  alto- 
gether; the  second,  while  acquitting  him  of  murder,  will  leave  him 
guilty  of  manslaughter. 

Insanity  is  mental  or  moral ;  the  latter  being  sometimes  called  homi- 
cidal mania,  and  properly  so.  It  is  my  purpose  to  deliver  to  you  the 
law  on  this  ground  of  defense,  and  not  to  press  upon  your  considera- 
tion, at  least  to  an  unusual  degree,  the  circumstances  of  the  present 
case  on  which  the  law  acts. 

A  man  may  be  mad  on  all  subjects;  and  then,  though  he  may  have 
glimmerings  of  reason,  he  is  not  a  responsible  agent.  This  is  gener- 
al insanity;  but,  if  it  be  not  so  great  in  its  extent  or  degree  as  to  blind 
him  to  the  nature  and  consequences  of  his  moral  duty,  it  is  no  defense 
to  an  accusation  of  crime.  It  must  be  so  great  as  entirely  to  destroy 
his  perception  of  right  and  wrong;  and  it  is  not  until  that  perception 
is  thus  destroyed  that  he  ceases  to  be  responsible.  It  must  amount  to 
delusion  or  hallucination,  controlling  his  will,  and  making  the  com- 
mission of  the  act,  in  his  apprehension,  a  duty  of  overruling  necessity. 
The  most  apt  illustration  of  the  latter  is  the  perverted  sense  of  re- 
ligious obligation  which  has  caused  men  sometimes  to  sacrifice  their 
wives  and  children. 

Partial  insanity  is  confined  to  a  particular  subject,  the  man  being 
sane  on  every  other.     In  that  species  of  madness,  it  is  plain  that  he  is 
a  responsible  agent,  if  he  were  not  instigated  by  his  madness  to  perpe- 
trate the  act.     He  continues  to  be  a  legitimate  subject  of  punishment, 
although  he  may  have  been  laboring  under  a  moral  obliquity  of  per- 
ception as  much  so  as  if  he  were  merely  laboring  under  an  obliquity  of 
vision.     A  man  whose  mind  squints,  unless  impelled  to  crime  by  this 
very  mental  obliquity,  is  as  much  amenable  to  punishment  as  one  whose 
eye  squints.    On  this  point  there  has  been  a  mistake  as  melancholy  as  it 
,uilar.     It  has  been  announced  by  learned  doctors  that,  if  a  man 
•    taint  of  insanity   entering   into  his  mental   structure,  it 
.  him  of  all  responsibility  to  the  laws.    To  this  monstrous 

i  Part  of  this  caw  is  omitted. 


Sec.  4)  INSANITY.  151 

error  may  be  traced  both  the  fecundity  in  homicides,  which  has  dis- 
honored this  country,  and  the  immunity  that  has  attended  them.  The 
law  is  that,  whether  the  insanity  be  general  or  partial,  the  degree  of 
it  must  be  so  great  as  to  have  controlled  the  will  of  its  subject,  and 
to  have  taken  from  him  the  freedom  of  moral  action. 

But  there  is  a  moral  or  homicidal  insanity,  consisting  of  an  ir- 
resistible inclination  to  kill,  or  to  commit  some  other  particular  offense. 
There  may  be  an  unseen  ligament  pressing  on  the  mind,  drawing  it  to 
consequences  which  it  sees,  but  cannot  avoid,  and  placing  it  under  a 
coercion  which,  while  its  results  are  clearly  perceived,  is  incapable  of 
resistance.  The  doctrine  which  acknowledges  this  mania  is  dangerous 
in  its  relations,  and  can  be  recognized  only  in  the  clearest  cases.  It 
ought  to  be  shown  to  have  been  habitual,  or  at  least  to  have  evinced 
itself  in  more  than  a  single  instance.  It  is  seldom  directed  against  a 
particular  individual ;  but  that  it  may  be  so  is  proved  by  the  case  of  the 
young  woman  who  was  deluded  by  an  irresistible  impulse  to  destroy 
her  child,  though  aware  of  the  heinous  nature  of  the  act.  The  fre- 
quency of  this  constitutional  malady  is  fortunately  small,  and  it  is 
better  to  confine  it  within  the  strictest  limits.  If  juries  were  to  allow 
it  as  a  general  motive  operating  in  cases  of  this  character,  its  recogni- 
tion would  destroy  social  order,  as  well  as  personal  safety.  To  es- 
tablish it  as  a  justification  in  any  particular  case,  it  is  necessary  either 
to  show,  by  clear  proofs,  its  contemporaneous  existence  evinced  by 
present  circumstances,  or  the  existence  of  a  habitual  tendency  develop- 
ed in  previous  cases,  becoming  in  itself  a  second  nature.  Now,  what  is 
the  evidence  of  mental  insanity  in  this  particular  case? 

1.  The  prisoner's  counsel  rely  on  his  behavior,  appearance,  and  ex- 
clamations at  the  time  of  the  act,  or  immediately  after  it.  According 
to  one  witness,  his  conduct  was  that  of  reckless  determination,  evincing 
an  unsound  mind.  "I  did  it,"  he  repeated  three  times,  it  is  said,  like 
a  raving  maniac.  But  you  must  recollect  that,  to  commit  murder,  a 
man  must  be  wound  up  to  a  high  pitch  of  excitement.  None  but  a 
butcher  by  trade  could  go  about  it  with  circumspection  and  coolness. 
The  emotion  shown  by  the  prisoner  was  not  extraordinary.  He  seem- 
ed to  know  the  consequences  of  his  act — was  under  no  delusion — and 
was  self-possessed  enough  to  find  a  reason  for  the  act ;  that  reason  be- 
ing her  alleged  ill  treatment. 

2.  It  is  urged  that  the  want  of  motive  is  evidence  of  insanity.  If 
a  motive  were  to  be  necessarily  proved  by  the  commonwealth,  it  is 
shown  in  this  case  by  the  prisoner's  own  declaration;  but  a  motive 
need  not  always  be  shown.  It  may  be  secret ;  and  to  hold  every  one 
mad  whose  acts  cannot  be  accounted  for  on  the  ordinary  principles  of 
cause  and  effect  would  give  a  general  license.  The  law  itself  implies 
malice,  where  the  homicide  is  accompanied  with  such  circumstances 
as  are  the  ordinary  symptoms  of  a  wicked,  depraved  and  malignant 
spirit,  a  heart  regardless  of  social  duty,  and  deliberately  bent  upon 
mischief. 


152  INTEN'T   AS   AFFECTED   BY    CONDITIONS.  (Cll.  5 

3.  But  it  is  said  that  there  is  intrinsic  evidence  of  insanity  from  the 
nature  of  the  act.  To  the  eye  of  reason  every  murderer  may  seem  a 
madman ;   but  in  the  eye  of  the  law  he  is  still  responsible. 

4.  His  trip  to  Pittsburgh  and  voyage  to  Germany,  it  is  contended, 
have  not  been  accounted  for,  except  that  he  expected  to  get  property 
in  the  latter,  but  did  not;  and  there  is  an  equal  obscurity  about  the 
motives  of  his  setting  fire  to  his  wife's  property —  her  barn,  I  think  it 
was.  But  these  things  do  not  show  any  insanity  connected  with  his 
crime. 

The  only  circumstance  which  seems  to  point  to  a  foregone  conclu- 
sion is  the  repeated  visions  he  had,  after  he  started  for  Pittsburgh,  of 
his  wife  and  her  granddaughter,  whose  throat  he  also  attempted  to 
cut,  standing  at  the  foot  of  his  bed.  This  foreboding  may  tend  to 
show  a  morbidness  of  mind  in  reference  to  this  particular  subject; 
but  it  is  for  you  to  say — keeping  in  mind  the  fact  that,  to  constitute  a 
sufficient  defense  on  this  ground,  there  must  be  an  entire  destruction 
of  freedom  of  the  will,  blinding  the  prisoner  to  the  nature  and  conse- 
quence of  his  moral  duty — whether  these  circumstances  raise  a  rea- 
sonable doubt  of  the  prisoner's  responsibility. 

After  an  absence  of  two  hours,  the  jury  returned  to  their  box  with 
a  verdict  of  guilty  of  murder  in  the  first  degree.2 


STATE  v.  KNIGHT. 

(Supreme  Judicial  Court  of  Maine,  1901.     95  Me.  467,  50  Atl.  276,  55  L.  R. 

A.  373.) 

WiiiTEiiousE,  J.3  In  this  case  the  respondent  was  indicted  and 
tried  for  the  murder  of  Mamie  Small.  It  was  not  in  controversy  thai 
the  accused,  if  responsible  for  his  act,  was  guilty  of  murder  in  the 
first  degree;  and  the  only  issue  raised  in  defense  was  the  insanity  of 
the  defendant.  The  jury  returned  a  verdict  of  "guilty  of  murder 
in  the  first  degree,"  and  the  case  comes  to  this  court  on  exceptions 
taken  by  the  defendant  to  the  refusal  of  the  presiding  justice  to  give 
certain  instructions,  and  to  the  instructions  actually  given. 

It  is  not  in  controversy  that  the  instructions  actually  given  to  the 
jury  were  in  entire  harmony  with  the  intellectual  test  of  criminal 
responsibility  approved  in  State  v.  Lawrence,  57  Me.  57  1,  and  cases 
there  cited,  and  that  the  refusal  to  give  the  requested  instructions  was 

i  Accord:  Holding  "Irresistible  Impulse"  excuses,  Green  v.  State,  64  Ark., 
523,  13  s.  \v.  '.»7::  (1898);  State  v.  Johnson,  40  Conn.  136  (1878);  State  v. 
Cole,  2  Pennewill  (Del.)  844,  45  Atl.  391  (1899);  Allams  v.  State,  123  Ga. 
BOO,  51  S.  K.  506  (1905);  Plake  v.  State,  121  [nd.  438,  23  N.  B.  liT::.  16  Am. 
si  Rep.  -ins  (1889)  [semble  Pouts  v.  State,  4  <:.  Greene  <i<>wm)  not)  (1854)]; 
smith  v.  Commonwealth,  l  Duv.  (Ky.)  224  (1864);  Blackburn  v.  State.  28 
Ohio  st.  146  (1872);  Dejarnette  v.  Commonwealth,  75  Va.  867  (1881);  But- 
ler  v.  State,  102  wis.  864,  78  N.  W.  590  (1899). 

»  Part  of  tins  case  is  omitted 


Sec.  4)  INSANITY.  153 

fully  justified  by  the  doctrine  of  that  case.  But  it  is  earnestly  con- 
tended by  the  learned  counsel  for  the  defendant  that  an  uncontrollable 
insane  impulse  to  commit  a  criminal  act  may  coexist  with  full  knowl- 
edge of  the  wrongfulness  of  the  act,  and  that  the  legal  test  of  respon- 
sibility for  crime,  afforded  by  the  knowledge  of  right  and  wrong  re- 
specting the  act  committed,  has  proved  to  be  insufficient  and  unsat- 
isfactory. It  is  accordingly  insisted  that  the  time  has  now  arrived 
when  this  criterion  of  responsibility  can  be  safely  modified  by  incor- 
porating into  the  rule  the  element  of  irresistible  impulse  presented  in 
the  defendant's  requests. 

It  is  undoubtedly  true  that  in  the  progressive  development  of  the 
medical  jurisprudence  of  insanity  more  enlightened  views  have  grad- 
ually prevailed  respecting  the  functional  activity  of  the  mind,  and  the 
course  of  symptoms  indicating  mental  disease,  and  that  just  conclu- 
sions have  more  frequently  been  reached  by  courts  and  juries  in 
recent  years  in  regard  to  the  relation  of  insanity  to  criminal  respon- 
sibility. But  since  the  announcement  of  the  decision  by  this  court 
in  State  v.  Lawrence,  supra,  in  the  year  1870,  this  abstruse  and  diffi- 
cult question  has  been  the  subject  of  exhaustive  re-examination  and 
renewed  study,  in  the  light  of  all  modern  discoveries  of  scientific 
truth  bearing  upon  it  by  the  most  eminent  medical  and  legal  jurists 
in  this  country  and  England,  and  by  courts  of  the  highest  authority 
in  both  countries;  and  it  is  still  held  by  an  overwhelming  weight  of 
judicial  authority  that,  when  the  insanity  of  the  accused  is  pleaded 
in  defense,  the  test  of  his  responsibility  for  crime  afforded  by  his 
capacity  to  understand  the  nature  and  quality  of  the  act  he  was  doing, 
and  his  mental  power  to  distinguish  between  right  and  wrong  with 
respect  to  that  particular  act  at  the  time  he  committed  it,  is  the  only 
proper  legal  criterion,  and  that  when  fully  developed  and  explained 
to  the  jury,  in  its  application  to  the  special  facts  and  circumstances 
of  different  cases,  it  will  always  be  found  adequate  to  meet  the  de- 
mands of  justice  and  humanity  towards  the  accused, ,  as  well  as  to 
insure  the  protection  and  safety  of  the  public. 

In  Browne's  Medical  Jurisprudence  of  Insanity,  published  in  Eng- 
land in  1875  and  republished  in  this  country,  the  author  critically 
analyzes  the  famous  answers  given  by  the  English  judges  to  the 
questions  proposed  to  them  by  the  House  of  Lords  after  the  trial  of 
McNaghten  in  1843  (sections  10-14),  which  have  formed  the  basis 
of  the  prevailing  rule  since  that  time,  and  the  one  approved  in  State 
v.  Lawrence,  supra,  and  then  proceeds  as  follows  (section  15):  "Aft- 
er the  fullest  examination  of  the  medical  opinions  on  the  other  side, 
we  are  constrained  to  hold  that  the  answers  of  the  judges  are  a  most 
satisfactory  statement  of  the  law,  and  that  no  better  test  of  respon- 
sibility could,  at  the  present  time,  be  devised  than  that  which  makes 
knowledge  of  right  and  wrong  at  the  time  of  the  commission  of  the 
act  the  means  of  judging  of  the  punishability  of  the  person  who 
has  committed  a  criminal  offense.     'Although  not  a  test  of  insanity/ 


154  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Cll.  5 

says  Dr.  Hammond,  'the  knowledge  of  right  and  wrong  is  a  test  of 
responsibility.  *  *  *  Any  individual  having  the  capacity  to  know 
that  an  act  which  he  contemplates  is  contrary  to  law  should  be  deemed 
legally  responsible  and  should  suffer  punishment.  He  possesses  what 
is  called  by  Bain  punishability.  *  *  *  The  only  forms  of  insanity 
which  in  my  opinion  should  absolve  from  responsibility  *  *  * 
are  such  a  degree  of  idiocy,  dementia,  or  mania  as  prevents  the  in- 
dividual from  understanding  the  consequences  of  his  act,  and  the 
existence  of  a  delusion  in  regard  to  a  matter  of  fact  which,  if  true, 
would  justify  his  act.'  " 

In  the  elaborate  work  on  Medical  Jurisprudence  by  Witthaus  & 
Becker,  published  in  New  York  in  1896,  is  a  treatise  on  the  Medical 
Aspects  of  Insanity  in  Its  Relations  to  Medical  Jurisprudence,  by 
Dr.  Fisher  of  New  York.  In  that  portion  of  the  treatise  devoted  to 
Impulsive  Insanity  the  author  says  (volume  3,  p.  273): 

"All  forms  of  crime  may  be  committed  under  the  influence  of 
irresistible  impulse — homicide,  suicide,  arson,  theft,  and  various  acts 
indicative  of  sexual  perversion.  We  may  also  have  melancholia  or 
mania  associated  with  this  condition,  and  more  rarely  delusions  and 
hallucinations.  It  is  not,  however,  in  these  latter  conditions  that 
we  should  consider  this  disease  as  an  entity.  In  fact,  the  only  safe 
course  is  to  follow  the  dictum  of  the  law  in  this  respect,  which 
virtually  says  that  irresistible  impulse  is  no  defense  unless  a  symptom 
of  insanity." 

Again,  in  the  treatise  on  Mental  Unsoundness  in  Its  Legal  Relation, 
in  the  same  volume,  by  Mr.  Becker,  the  author  says,  on  pages  421, 
422:  "But  evidence  of  the  loss  of  control  of  the  will,  or  of  morbid 
impulse,  does  not  constitute  a  defense,  except  when  it  demonstrates 
mental  unsoundness  of  such  a  character  as  to  destroy  the  power  of 
distinguishing  right  and  wrong  as  to  the  particular  act.  *  *  * 
This  rule  is  the  legal  essence  of  the  whole  matter,  and  it  avoids  much 
of  the  confusion  which  the  German  jurists  and  metaphysicians  have 
infused  into  this  subject." 

In  the  Medical  Jurisprudence  of  Insanity  or  Forensic  Psychiatry, 
by  Dr.  S.  V.  Clevenger,  of  Chicago,  published  in  1898,  the  author 
des  that  the  test  of  right  and  wrong  as  to  the  particular  act 
charged  is  generally  accepted  in  the  United  States  in  determining  tin- 
question  of  responsibility  for  crime  (volume  2,  p.  18),  and  abundantly 
justifies  the  concession  by  a  vast  array  of  "Legal  Adjudications  in 
Criminal  Cases"  cited  in  chapter  n.  of  the  same  volume. 

In  a  very  elaborate  discussion  of  the  subject  by  the  Supreme  Court 
of  Appeals  in  State  v.  Harrison,  36  YY.  \  a.  729,  15  S.  E.  982,  18 
I,.  1\.  A.  224  (1892),  the  authorities  are  critically  examined  and  com- 
d,  and  the  doctrine  of  "irresistible  impulse"  emphatically  repudiat- 
ed. In  the  opinion  it  i-  said:  "For  myself,  I  cannot  see  how  a  person 
who  rationally  comprehends  the  nature  and  quality  of  an  act,  and 
knows  that  it  is  wrong  and  criminal,  can  act  through  irresistible  in- 


Sec.  4)  INSANITY.  155 

nocent  impulse.  Knowing  the  nature  of  the  act  well  enough  to  make 
him  otherwise  liable  for  it  under  the  law,  can  we  say  that  he  acts 
from  irresistible  impulse,  and  not  criminal  design  and  guilt?  *  *  * 
I  admit  the  existence  of  irresistible  impulse,  and  its  efficacy  to  ex- 
onerate from  responsibility,  but  not  as  consistent  with  an  adequate 
realization  of  the  wrong  of  the  act.  It  is  that  uncontrollable  impluse 
produced  by  the  disease  of  the  mind,  when__that  disease  is  sufficient 
to  override  the  reason  and  judgment,  and  obliterate  the  sense^  of 
right^a^S-Jo  the  acL^done^^nd_d^prjye  the  accused  of  the  power  to 
choose  between  them/~TEiO£Qpulse  is  born, of  the  disease,  and^.  when 
it  exists,  capacity  to  know  the  nature,  of  the  act  is  gone.  This  is  the 
sense  in  which  irresistible  Impulse'  was  defined  in  Hopps  v.  People, 
31  111.  385,  83  Am.  Dec.  231,  and  Dacey  v.  People,  116  111.  556,  6 
N.  E.  165."  See,  also,  State  v.  Felter,  25  Iowa,  67;  State  v.  Mewher- 
ter,  46  Iowa,  88;  State  v.  Nixon,  32  Kan.  205,  4  Pac.  159;  Ort- 
wein  v.  Commonwealth,  76  Pa.  414,  18  Am.  Rep.  420;  People  v. 
Hoin,  62  Cal.  120,  45  Am.  Rep.  651;  U.  S.  v.  Guiteau  (D.  C.)  10 
Fed.  195. 

It  is  evident  that  much  of  the  diversity  of  opinion  or  difference 
in  modes  of  expression  upon  this  subject  arises  from  a  failure  to 
discriminate  between  that  "irresistible  impulse"  produced  by  an  in- 
sane delusion  or  mental  disease  which  has  progressed  to  the  extent  of 
dethroning  the  reason  and  judgment  and  destroying  the  power  of 
the  accused  to  distinguish  between  right  and  wrong  as  to  the  act  he 
is  committing,  and  that  uncontrollable  impulse  which  is  alleged  to 
arise  from  mental  disease  and  to  coexist  with  the  capacity  to  com- 
prehend the  nature  and  wrongfulness  of  the  act,  but  which  may  with 
equal  reason  and  consistency  be  attributable  to  moral  depravity  and 
criminal  perversity. 

In  the  case  at  bar  it  has  been  seen  that  the  defendant's  requests 
do  not  assume  the  existence  of  an  insane  delusion  or  any  mental 
disease  sufficient  to  override  his  reason  and  judgment,  obliterate  his 
sense  of  right  and  wrong,  and  deprive  him  of  the  power  to  choose  be- 
tween them.  On  the  contrary,  they  presuppose  "sufficient  mental 
capacity  and  reason  to  enable  him  to  distinguish  between  right  and 
wrong  as  to  the  particular  act,"  and  still  declare  him  irresponsible  if, 
by  reason  of  mental  disease,  he  did  not  have  "sufficient  will  power  to 
refrain  from  committing  the  act." 

It  is  contended,  in  behalf  of  the  state,  that  the  requests  present  a 
contradictory  and  impossible  state  of  mind,  in  thus  assuming  that  the 
accused  may  have  no  insane  delusions  as  to  the  act  he  is  committing, 
and  have  full  capacity  and  mental  power  to  comprehend  the  nature 
and  consequences  of  the  act,  to  know  that  it  was  unlawful  and  wrong 
and  would  subject  him  to  punishment,  and  yet  have  no  power  to  re- 
frain from  committing  it.  But,  whatever  may  eventually  be  declared 
by  the  great  body  of  medical  jurists  to  be  the  psychological  truth  in 
regard  to  the  coexistence  of  uncontrollable   impulse   and    such    full 


156  INTENT   AS   AFFECTED    BT    CONDITIONS.  (CIl.  5- 

capacity  to  distinguish  right  from  wrong  in  regard  to  the  act  in  ques- 
tion, at  present,  without  clear  and  conclusive  proof  that  such  a  state 
of  mind  may  exist,  and  in  the  absence  of  any  satisfactory  test  for 
the  discovery  of  its  existence  that  would  be  universally  applicable  in 
the  practicable  administration  of  the  criminal  law,  this  court  must 
adhere  to  the  rule  approved  in  State  v.  Lawrence,  supra,  which,  as 
construed  and  applied  in  this  state,  has  proved  to  be  an  adequate  and 
satisfactory  criterion  for  determining  the  punishability  of  the  ac- 
cused when  a  plea  of  insanity  is  interposed  in  defense.2 

Exceptions  overruled. 

Judgment  for  the  state. 


LOWE  v.  STATE. 

(Court  of  Criminal  Appeals  of  Texas,  1902.    44  Tex.  Cr.  R.  224,  70  S.  W.  206.) 

Henderson,  Judge.  Appellant  was  convicted  of  the  theft  of  a 
horse,  and  his  punishment  assessed  at  confinement  in  the  state  peni- 
tentiary for  a  term  of  five  years. 

The  only  question  presented  for  our  consideration  is  the  action  of 
the  court  in  failing  and  refusing  to  give  a  charge  on  kleptomania ;  that 
is,  a  charge  specially  defining  this  species  of  insanity.  It  is  conceded 
that  the  court  gave  a  sufficient  charge  on  insanity  generally,  but  that 
kleptomania  is  a  monomania  or  particular  kind  of  insanity  which 
should  have  been  specially  defined  to  the  jury.  In  this  connection 
we  understand  appellant  to  agree  that  the  right  and  wrong  test  is  ap- 
plicable to  kleptomania;  that  is,  the  disease  of  insanity  must  be  such 
as  to  have  deprived  appellant  at  the  time  of  the  capacity  to  distinguish 
between  the  right  and  wrong  of  the  particular  act  charged,  which  was 
theft.  If  this  be  conceded,  then  it  would  seem  to  our  comprehension 
that  the  charge  of  the  court  is  sufficient,  because  it  lays  down  the  'bright 
and  wrong"  test  as  to  the  particular  act  charged,  and  distinctly  told 
the  jury,  if  at  the  time  appellant  was  so  diseased  as  not  to  know  it  was 
wrong  to  commit  theft,  to  acquit  him.  However,  we  do  not  understand 
the  definition  of  "kleptomania"  to  be  as  conceded  by  appellant's  coun- 
sel. The  authorities  define  "kleptomania"  as  a  species  of  mania,  con- 
sisting of  an  irresistible  impulse  to  steal.  See  1  Cleavcnger,  Insan. 
p.  177;  1  Bish.  Crim.  Law,  §  388,  subd.  3.  Some  of  the  hooks,  how 
ever,  regard  it  as  a  morbid  propensity  to  steal,  whether  consciously  or 

ord:  People  v.  Owens,  123  Cal.  482,  56  Pac.  251  (1899);  Spencer  v. 
Slate  69  M'l.  28,  18  Ail.  809  (1888);  state  v.  Scott,  -11  Minn.  865,  48  N.  W. 
«2  (1889);  Cunningham  v.  State,  56  Miss.  269,  21  Am.  Rep.  860  (1879); 
Mackln  v.  siat...  59  V  J.  Law,  495,  86  All.  1040  (1896);  People  v.  Carpenter, 
102  N.  v.  288,  6  N.  i:.  584  (1886);  State  v.  Potts,  100  N.  0.  457,  <"»  S.  El.  <K7 
;  Stale  v.  Levelle,  84  S.  C.  120,  18  S.  B.  819,  27  Am.  St.  Rep.  799 
(1890);  Johnson  v.  stale.  LOOTena  254,  45  s.  w.  486  (1898);  Cannon  v.  State, 
41  Tex.  cr.  K.  467,  56  s.  W.  851  (1900);  State  v.  Lyons,  113  La.  959,  87 
South.  890  (1905);  Turner  v.  Territory,  15  Old.  557,  82  1'ac.  650  (1903). 


SCC.  4)  INSANITY.  157 

unconsciously.  If  kleptomania  is  simply  an  irresistible  impulse  to 
steal,  regardless  of  the  right  and  wrong  test,  then,  notwithstanding 
it  was  formerly  recognized  as  a  defense  in  theft  by  the  courts  of  this 
state  (see  Looney  v.  State,  10  Tex.  App.  520,  38  Am.  Rep.  GIG;  Har- 
ris v.  State,  18  Tex.  App.  287),  that  doctrine  has  more  recently  been 
repudiated  (Hurst  v.  State,  40  Tex.  Cr.  R.  378,  4G  S.  W.  635,  50  S. 
W.  719;  Cannon  v.  State,  41  Tex.  Cr.  R.  467,  56  S.  W.  351).  The 
writer  dissented  from  the  views  of  the  majority  of  the  court  in  those 
cases,  but  such  is  now  the  law  of  this  state.  So  we  hold,  if  the  right 
and  wrong  test  is  applicable  to  kleptomania,  the  court  gave  a  suffi- 
cient charge  on  the  subject.  If  kleptomania  is  merely  an  irresistible 
impulse  to  steal,  as  the  authorities  seem  to  indicate,  then  it  is  not  the 
law  in  this  state,  and  the  court  was  not  required  to  give  a  special 
charge  on  that  subject. 

No  error  appearing  in  the  record,  the  judgment  is  affirmed. 



STATE  v.  JONES. 

(Supreme  Judicial  Court  of  New  Hampshire,  1871.    50  N.  H.  339,  9  Am. 

Rep.  242.) 

Indictment  against  Hiram  Jones  for  the  murder  of  his  wife.  The 
defendant  was  found  guilty  of  murder  in  the  first  degree. 

The  defendant  excepted  to  the  following  instructions  given  to  the 
jury : 

If  the  defendant  killed  his  wife  in  a  manner  that  would  be  criminal 
and  unlawful  if  the  defendant  were  sane,  the  verdict  should  be 
"not  guilty  by  reason  of  insanity,"  if  the  killing  was  the  offspring  or 
product  of  mental  disease  in  the  defendant. 

Neither  delusion,  nor  knowledge  of  right  and  wrong,  nor  design 
nor  cunning  in  planning  and  executing  the  killing  and  escaping  or 
avoiding  detection,  nor  ability  to  recognize  acquaintances,  or  to  labor, 
or  transact  business,  or  manage  affairs,  is,  as  a  matter  of  law,  a  test 
of  mental  disease;  but  all  symptoms  and  all  tests  of  mental  disease 
are  purely  matters  of  fact,  to  be  determined  by  the  jury.  Whether 
the  defendant  had  a  mental  disease,  and  whether  the  killing  of  his 
wife  was  the  product  of  such  disease,  are  questions  of  fact  for  the 
jury. 

Insanity  is  mental  disease— disease  of  the  mind.  An  act  produced 
by  mental  disease  is  not  a  crime.  If  the  defendant  had  a  mental 
disease  which  irresistibly  impelled  him  to  kill  his  wife— if  the  killing 
was  the  product  of  mental  disease  in  him — he  is  not  guilty.  He  is 
innocent — as  innocent  as  if  the  act  had  been  produced  by  involuntary 
intoxication,  or  by  another  person  using  his  hand  against  his  utmost 
resistance.  Insanity  is  not  innocence,  unless  it  produced  the  killing 
of  his  wife. 


158  INTENT    AS   AFFECTED   BY    CONDITIONS.  (Ch.  5 

If  the  defendant  had  an  insane  impulse  to  kill  his  wife,  and  could 
have  successfully  resisted  it,  he  was  responsible.  Whether  every  in- 
sane impulse  is  always  irresistible,  is  a  question  of  fact.  Whether, 
in  this  case,  the  defendant  had  an  insane  impulse  to  kill  his  wife, 
and  whether  he  could  resist  it,  are  questions  of  fact. 

Whether  an  act  may  be  produced  by  partial  insanity,  when  no 
connection  can  be  discovered  between  the  act  and  the  disease,  is  a 
question  of  fact. 

The  defendant  is  to  be  acquitted  on  the  ground  of  insanity,  un- 
less the  jury  are  satisfied  beyond  a  reasonable  doubt  that  the  killing 
was  not  produced  by  mental  disease. 

The  defendant  was  sentenced,  and  filed  this  bill  of  exceptions. 

Ladd,  J.1  The  remaining  and  most  important  questions  in  the 
case  arise  upon  the  instructions  given  by  the  court  to  the  jury,  and 
the  refusal  to  give  instructions  requested  by  defendant's  counsel. 

When,  as  in  this  case,  a  person  charged  with  crime  admits  the  act, 
but  sets  up  the  defense  of  insanity,  the  real  ultimate  question  to  be 
determined  seems  to  be  whether,  at  the  time  of  the  act,  he  had  the 
mental  capacity  to  entertain  a  criminal  intent — whether,  in  point  of 
fact,  he  did  entertain  such  intent. 

In  solving  that  problem,  as  in  all  other  cases,  it  is  for  the  court 
to  find  the  law,  and  for  the  jury  to  find  the  fact.  The  main  ques- 
tion for  our  consideration  here  is,  what  part  of  this  difficult  inquiry 
is  law,  and  what  part  fact? 

It  will  be  readily  agreed,  as  said  by  Shaw,  C.  J.,  in  Commonwealth 
v.  Rogers,  7  Mete.  (Mass.)  500,  41  Am.  Dec.  458,  that  if  the  reason 
and  mental  powers  of  the  accused  are  either  so  deficient  that  he  has 
no  will,  no  conscience,  or  controlling  mental  power,  or  if,  through  the 
overwhelming  violence  of  mental  disease,  his  intellectual  power  is  for 
the  time  obliterated,  he  is  not  a  responsible  agent,  and,  of  course,  is 
not  punishable  for  acts  which  otherwise  would  be  criminal. 

But  experience  and  observation  show  that,  in  most  of  the  cases 
which  come  before  the  courts,  where  it  is  sufficiently  apparent  that 
c  has  attacked  the  mind  in  some  form  and  to  some  extent,  it 
has  not  thus  wholly  obliterated  the  will,  the  conscience,  and  mental 
power,  but  has  left  its  victim  still  in  possession  of  some  degree  of 
ability  in  some  or  all  these  qualities.  It  may  destroy,  or  it  may  only 
impair  and  becloud,  the  whole  mind;  or  it  may  destroy,  or  only  im- 
pair, the  functions  of  one  or  more  faculties  of  tin-  mind.  There 
seem  to  be  ca^e^  where,  as  F.rskine  said  in  Hadfield's  Case,  reason 
I  driven  from  her  seat,  but  where  distraction  sits  down  upon  it 
along  with  her,  holds  her  trembling  upon  it,  and  frightens  her  from 
her  propriety. 

The  term  "partial  insanity"  has  been  applied  to  such  cases  by  writ- 
ers and  judges,   from   Lord   Hale  to  Chief  Justice  Shaw,  where,  as 

i  Part  of  the  opinion  Is  omitted. 


Sec.  4)  INSANITY.  159 

has  been  said,  "the  mind  may  be  clouded  and  weakened,  but  not 
incapable  of  remembering,  reasoning,  and  judging";  and  it  is  here 
that  the  difficulty  of  the  subject  begins,  and  that  confusion  and  con- 
tradiction in  the  authorities  make  their  appearance.  "No  one  can 
say  where  twilight  ends  or  begins,  but  there  is  ample  distinction  be- 
tween night  and  day."  We  are  to  inquire  whether  a  universal  test 
has  been  found  wherewith  to  determine,  in  all  cases,  the  line  between 
criminal  accountability  and  nonaccountability — between  the  region  of 
crime  and  innocence — in  those  cases  which  lie  neither  wholly  in  the 
darkness  of  night  nor  the  light  of  day.  If  such  a  test  exists,  or  if  one 
can  be  found,  it  is  of  the  utmost  importance  that  it  be  clearly  defined 
and  broadly  laid  down,  so  that  when  it  is  given  to  a  jury  it  may 
aid,  rather  than  confuse,  them.  To  ascertain  whether  a  rule  has 
hitherto  been  found,  we  must  look  to  the  authorities;  and  so  far  as 
we  have  been  able  to  examine  them  the  leading  and  familiar  English 
cases  and  authorities  are  substantially  as  follows:  [The  learned  judge 
here  reviewed  the  English  authorities  previous  to  McNaghten's  Case, 
and  proceeded.] 

The  numerical  preponderance  of  authority  in  England,  as  gathered 
from  the  cases  thus  far,  would  seem  to  be  decidedly  in  favor  of  the 
rule  that  knowledge  of  right  and  wrong,  without  reference  to  the 
particular  act,  is  the  test,  although  their  force  is  much  shaken,  if 
not  wholly  overthrown,  by  the  qualifications  which  judges  have  seem- 
ed to  feel  at  liberty  to  introduce,  to  meet  their  individual  views  or 
the  exigencies  of  particular  cases,  and  especially  by  the  charge  of 
Lord  Denman  in  Regina  v.  Oxford. 

The  memorable  effort  of  the  House  of  Lords,  in  1843,  to  have  the 
confusion  and  conflict  of  opinion  which  had  arisen  on  this  perplexing 
question  all  cleared  away  by  one  distinct  and  full  avowal  by  the  judges 
of  what  the  law  was  and  should  be  in  relation  to  it,  is  too  conspicuous 
in  the  history  of  the  subject  to  be  passed  without  notice. 

It  may  safely  be  said  that  the  character  of  the  judges  and  the  cir- 
cumstances under  which  the  questions  in  McNaghten's  Case  (see 
note  to  Regina  v.  Higginson,  1  Car.  &  K.,  at  page  130)  were  pro- 
pounded to  them  by  the  House  of  Lords  make  it  morally  certain  that 
if,  in  the  nature  of  things,  clear,  categorical,  and  consistent  answers 
were  possible,  such  answers  would  have  been  given ;  in  other  words, 
that  if  a  safe,  practical,  legal  test  exists,  it  would  have  been  then  found 
by  those  very  learned  men,  and  declared  to  the  world.  Such  a  result 
would  have  brought  order  out  of  chaos,  and  saved  future  generations 
of  lawyers  and  judges  a  vast  amount  of  trouble  in  trying  this  kind 
of  cases.  But  an  examination  of  the  answers  given  shows  that  they 
failed  utterly  to  do  any  such  thing;  and  it  is  not  too  much  to  say  that, 
if  they  did  not  make  the  path  to  be  pursued  absolutely  more  uncertain 
and  more  dark,  they  at  best  shed  but  little  light  upon  its  windings, 
and  furnish  no  plain  or  safe  clue  to  the  labyrinth. 

In  answer  to  the  first  question,  all  the  judges,  except  Maule,  say 


1G0  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Ch.   5 

that,  "notwithstanding  the  party  accused  did  the  act  complained  of 
with  a  view,  under  the  influence  of  insane  delusion,  of  redressing 
or  revenging  some  supposed  grievance  or  injury,  or  of  producing 
some  public  benefit,  he  is  nevertheless  punishable,  according  to  the 
nature  of  the  crime  committed,  if  he  knew  at  the  time  of  commit- 
ting such  crime  that  he  was  acting  contrary  to  law,  by  which  is  meant 
the  law  of  the  land."  Here  is  an  entirely  new  element — knowledge 
that  he  was  acting  contrary  to  the  law  of  the  land;  and  hereupon 
the  inquiry  arises,  is  a  man,  acting  under  a  delusion  of  this  sort, 
presumed  to  know  the  law  of  the  land?  The  answer  must  be,  "Yes;" 
for  the  judges  say,  further  on:  "The  law  is  administered  upon  the 
principle  that  every  one  must  be  taken  conclusively  to  know  the  law 
of  the  land,  without  proof  that  he  does  know  it." 

Let  this  proposition  be  examined  a  moment:  Knowledge  that  the 
act  was  contrary  to  the  law  of  the  land  is  here  given  as  a  test;  that 
is,  such  knowledge  is  assumed  to  be  the  measure  of  mental  capacity 
sufficient  to  entertain  a  criminal  intent.  By  what  possible  means,  it 
may  be  asked,  can  that  test  or  measure  be  applied,  without  first  find- 
ing out  whether  the  prisoner  in  fact  knew  what  the  law  of  the  land 
was?  How  could  a  jury  say  whether  a  man  knew,  or  did  not  know, 
that  an  act  was  contrary  to  the  law  of  the  land,  without  first  ascer- 
taining whether  he  knew  what  that  law  was? 

It  was  like  saying  that  knowledge  of  some  fact  in  science — as,  for 
example,  that  a  certain  quantity  of  arsenic  taken  into  the  stomach  will 
produce  death — shall  be  the  test,  and  at  the  same  time  saying  that 
it  makes  no  difference  whether  the  prisoner  ever  heard  of  arsenic,  or 
knows  anything  of  its  properties  or  not.  Knowledge  that  the  act  is 
contrary  to  law  might  be  taken  as  a  measure  of  capacity  to  commit 
crime,  and  so  might  knowledge  of  any  other  specific  thing  that  should 
be  settled  upon  for  that  purpose,  and  such  a  test  would  be  consistent 
and  comprehensible,  whether  it  were  right  or  not;  but  when  it  is  said 
that  knowledge  of  a  certain  thing  is  the  test,  and  then  we  are  told 
in  the  next  paragraph  that  it  makes  no  difference  whether  the  man 
ever  heard  of  the  thing  or  not,  I  confess  that  I  am  not  able  to  see  any 
opening  for  escape  out  of  the  maze  into  which  we  are  led.  Whether 
a  jury  would  be  more  successful  must  depend,  I  suppose,  on  their 
comparative  intelligence. 

In  connection  with  this  rule,  it  is  useful  to  bear  in  mind  that  Had- 
field  knew  he  was  doing  an  illegal  act,  and  did  it  for  the  avowed  pur- 
pose of  bringing  upon  himself  the  punishment  which  he  knew  was 
the  legal  consequence  of  the  act. 

Maule,  J.,  hold,  thai  the  general  test  of  capacity  to  know  right 
From  wrong  in  the  abstract  is  to  be  applied  in  the  case  supposed  by 
Che  first  question,  the  same  as  in  any  other  phase  of  mental  unsound- 
ness. 

In  answer  to  the  second  and  third  questions,  which  relate  to  the 
terms  in  which  the  matter  should  be  left  to  the  jury,  the  judges  say 


Sec.  4)  INSANITY.  1G1 

that,  "to  establish  a  defense  on  the  ground  of  insanity,  it  must  be 
clearly  proved  that,  at  the  time  of  committing  the  act,  the  party  ac- 
cused was  laboring  under  such  a  defect  of  reason  from  disease  of 
the  mind  as  not  to  know  the  nature  and  quality  of  the  act  he  was 
doing,  or,  if  he  did  know  it,  he  did  not  know  he  was  doing  what  was 
wrong." 

Suppose,  now,  an  insane  man  does  an  act  which  he  knows  to  be 
contrary  to  law,  because  from  an  insane  delusion  ( if  that  term  amounts 
to  anything  more  than  the  single  term  "insanity")  he  believes  it  to 
be  right  notwithstanding  the  law,  that  the  law  is  wrong,  or  that  the 
peculiar  circumstances  of  the  case  make  it  right  for  him  to  disregard 
it  in  this  instance;  how  are  these  two  rules  to  be  reconciled?  It 
would  seem  to  be  plain  that  they  are  in  hopeless  conflict,  and  cannot 
both  stand. 

Maule,  ].,  says:  "The  questions  necessarily  to  be  submitted  to 
the  jury  are  those  questions  of  fact  which  are  raised  on  the  record. 
In  a  criminal  trial  the  question  commonly  is  whether  the  accused  be 
guilty  Oi-  not  guilty;  but,  in  order  to  assist  the  jury  in  coming  to  a 
right  conclusion  on  this  necessary  and  ultimate  question,  it  is  usua) 
and  proper  to  submit  such  subordinate  or  intermediate  questions  as 
the  course  which  the  trial  has  taken  may  have  made  convenient  to 
direct  their  attention  to.  What  these  questions  are,  and  the  manner 
of  submitting  them,  is  matter  of  discretion  for  the  judge — a  discre- 
tion to  be  guided  by  a  consideration  of  all  the  circumstances  attend- 
ing the  inquiry.  In  performing  this  duty,  it  is  sometimes  necessary  or 
convenient  to  inform  the  jury  as  to  the  law" — which,  he  repeats,  is 
knowledge  of  right  and  wrong.  He  also  says  there  are  no  terms  which 
the  judge  is  by  law  required  to  use,  only  they  must  not  be  inconsist- 
tent  with  the  law  that  knowledge  of  right  and  wrong  is  the  test. 

The  answer  to  the  fourth  question  introduces  a  doctrine  which 
seems  to  me  very  remarkable,  to  say  the  least.  The  question  was: 
"If  a  person,  under  an  insane  delusion  as  to  existing  facts,  commits 
an  offense,  is  he  thereby  excused?"  To  which  the  answer  was  as 
follows:  "On  the  assumption  that  he  labors  under  partial  delusion 
only,  and  is  not  in  other  respects  insane,  he  must  be  considered  in  the 
same  situation,  as  to  responsibility,  as  if  the  facts,  with  respect  to 
which  the  delusion  exists,  were  real.  For  example:  If,  under  the 
influence  of  delusion,  he  supposes  another  man  to  be  in  the  act  of 
attempting  to  take  away  his  life,  and  he  kills  that  man,  as  he  supposes, 
in  self-defense,  he  would  be  exempt  from  punishment.  If  his  de- 
lusion was  that  the  deceased  had  inflicted  a  serious  injury  to  his 
character  or  fortune,  and  he  killed  him  in  revenge  for  such  supposed 
injury,  he  would  be  liable  to  punishment." 

The  doctrine  thus  promulgated  as  law  has  found  its  way  into  the 

text-books,  and  has  doubtless  been  largely  received  as  the  enunciation 

of  a  sound  legal  principle  since  that  day.     Yet  it  is  probable  that  no 

ingenious  student  of  the  law  ever  read  it  for  the  first  time  without 

Mik.Cr.L.— 11 


162  INTENT   AS   AFFECTED   BY    CONDITIONS.  (Cll.  5 

being  shocked  by  its  exquisite  inhumanity..  It  practically  holds  a  man, 
confessed  to  be  insane,  accountable  for  the  exercise  of  the  same  rea- 
son, judgment,  and  controlling  mental  power  that  is  required  of  a 
man  in  perfect  mental  health.  It  is,  in  effect,  saying  to  the  jury:  The 
prisoner  was  mad  when  he  committed  the  act  but  he  did  not  use  suffi- 
cient reason  in  his  madness.  He  killed  a  man  because,  under  an 
insane  delusion,  he  falsely  believed  the  man  had  done  him  a  great 
wrong,  which  was  giving  rein  to  a  motive  of  revenge,  and  the  act 
is  murder.  If  he  had  killed  a  man  only  because,  under  an  insane 
delusion,  he  falsely  believed  the  man  would  kill  him  if  he  did  not  do 
so,  that  would  have  been  giving  rein  to  an  instinct  of  self-preservation, 
and  would  not  be  crime.  It  is  true,  in  words,  the  judges  attempt  to 
guard  against  a  consequence  so  shocking  as  that  a  man  may  be  pun- 
ished for  an  act  which  is  purely  the  offspring  and  product  of  insanity, 
by  introducing  the  qualifying  phrase,  "and  is  not  in  other  respects 
insane";  that  is,  if  insanity  produces  the  false  belief,  which  is  the 
prime  cause  of  the  act,  but  goes  no  further,  then  the  accused  is  to 
be  judged  according  to  the  character  of  motives  which  are  presumed 
to  spring  up  out  of  that  part  of  the  mind  which  has  not  been  reached 
or  affected  by  the  delusion  or  disease.  This  is  very  refined.  It  may 
be  that  mental  disease  sometimes  takes  a  shape  to  meet  the  provi- 
sions of  this  ingenious  formula,  or,  if  no  such  case  has  ever  yet  ex- 
isted, it  is  doubtless  within  the  scope  of  Omnipotent  Power  hereafter 
to  strike  with  disease  some  human  mind  in  such  peculiar  manner  that 
the  conditions  will  be  fulfilled,  and  when  that  is  done,  when  it  is  cer- 
tainly known  that  such  a  case  has  arisen,  the  rule  may  be  applied 
without  punishing  a  man  for  disease;  that  is,  when  we  can  certainly 
know  that,  although  the  false  belief  on  which  the  prisoner  acted  was 
the  product  of  mental  disease,  still  that  the  mind  was  in  no  other  way 
impaired  or  affected,  and  that  the  motive  to  the  act  did  certainly  take 
its  rise  in  some  portion  of  the  mind  that  was  yet  in  perfect  health,  the 
rule  may  be  applied  without  any  apparent  wrong.  But  it  is  a  rule 
which  can  be  safely  applied  in  practice  that  we  are  seeking;  and  to 
say  that  an  act  which  grows  wholly  out  of  an  insane  belief  that  some 
great  wrong  has  been  inflicted  is  at  the  same  time  produced  by  a 
spirit  of  revenge  springing  from  some  portion  or  corner  of  the  mind 
that  has  not  been  reached  by  the  disease  is  laying  down  a  pathological 
and  psychological  fact  which  no  human  intelligence  can  ever  know 
to  be  true,  and  which,  if  it  were  true,  would  not  be  law,  but  pure 
itter  of  fact.  No  such  distinction  ever  can  or  ever  will  be  drawn 
in  practice,  and  tin-  absurdity  as  well  as  inhumanity  of  the  rule  seems 
to  me  sufficiently  apparent  without   further  comment. 

To  form  a  <  timate  of  the  value  of  the.se  answers,  we  have 

only  to  suppose  that,  at  the  end  of  a  criminal  trial   where  the  defense 
insanity,  tin;  jury  for  their  guidance  in  determin- 

ing the  question  with  which  they  are  charged.    Tried  by  this  practical 
test,  it  seems  to  me,  they  utterly  fail;    and  the  reason  of  the  failure, 


Sec.  4)  INSANITY.  1G3 

as  I  think,  is  that  it  was  an  attempt  to  lay  down  as  law  that  which, 
from  its  very  nature,  is  essentially  matter  of  fact.  It  is  a  question 
of  fact  whether  any  universal  test  exists,  and  it  is  also  a  question  of 
fact  what  the  test  is,  if  any  there  be. 

It  is  entirely  obvious  that  a  court  of  law,  undertaking  to  lay  down 
an  abstract  general  proposition  which  may  be  given  to  the  jury  in  all 
cases,  by  which  they  are  to  determine  whether  the  prisoner  had  ca- 
pacity to  entertain  a  criminal  intent,  stands  in  exactly  the  same  position 
as  that  occupied  by  the  English  judges  in  attempting  to  "answer  the 
questions  propounded  to  them  by  the  House  of  Lords  in  this  case;  and 
whenever  such  an  attempt  is  made  I  think  it  must  always  be  attended 
with  failure,  because  it  is  an  attempt  to  find  what  does  not  exist,  name-, 
ly,  a  rule  of  law  wherewith  to  solve  a  question  of  fact. 

This  is  the  only  conclusion  I  desire  to  draw  from  the  cases  and; 
text-writers  referred  to.  It  is  clear  to  me  that  judges  have  adapted 
their  language  to  the  facts  of  the  particular  case  before  them,  and 
that  when  anything  is  said  about  knowledge  of  right  and  wrong,  or 
knowledge  of  the  quality  of  the  act,  or  any  other  legal  test,  it  has 
been,  and  will  inevitably  continue  to  be,  qualified  and  explained  in 
such  a  way,  to  meet  the  evidence  upon  which  the  jury  are  to  pass, 
that  its  character  as  a  rule  entirely  disappears. 

No  one  but  the  Creator  of  all  things  can  look  in  upon  the  chaos  of  a 
disordered  mind,  and  determine  with  certainty  whether  its  powers 
are  so  much  prostrated,  enfeebled,  or  deranged,  that  the  unhappy  suf- 
ferer has  ceased  to  be  an  accountable  being.  Still  the  court  and  jury 
must  determine  that  question,  approximately,  as  best  they  can  in  each 
individual  case;  and  it  makes  no  difference,  so  far  as  I  can  see,  with 
the  difficulty  of  the  subject,  whether  Lord  Brougham's  view,  that  a 
distinction  is  to  be  made  between  the  moral  accountability  of  a  man 
to  his  Maker  and  his  accountability  to  human  tribunals,  be  accepted 
or  not.  With  this  duty  to  perform,  and  this  responsibility  upon  them, 
courts  naturally  and  properly  turn  to  men  of  science,  such  as  have 
had  large  experience  in  the  care  and  treatment  of  the  insane,  for  aid; 
and  the  questions  allowed  to  be  put  to  experts  and  answered  by  them, 
both  in  England  and  this  country,  show  that  what  is  laid  down  as  law 
in  theory  is  almost  universally  treated  as  fact  in  practice. 

At  the  trial,  where  insanity  is  set  up  as  a  defense,  two  questions 
are  presented:  First.  Had  the  prisoner  a  mental  disease?  Second. 
If  he  had,  was  the  disease  of  such  a  character,  or  was  it  so  far  de- 
veloped, or  had  it  so  far  subjugated  the  powers  of  the  mind,  as  to 
take  away  the  capacity  to  form  or  entertain  a  criminal  intent?  The 
first  is  so  purely  a  question  of  fact  that  no  one  would  think  of  dis- 
puting it  any  sooner  than  he  would  dispute  that  it  was  a  question  of 
fact  whether  a  man  has  consumption  or  not.  It  is  in  settling  the 
second  that  all  the  difficulty  arises. 

The  instructions  asked  for  in  this  case  go  upon  the  ground  that 
this  is  a  mixed  question  of  law  and  fact,  that  where  there  is  delusion 


164  INTENT   AS   AFFECTED    BY   CONDITIONS.  (Ch.  5 

there  can  be  no  criminal  intent,  and  that  where  there  is  capacity  to 
know  right  from  wrong  in  reference  to  the  particular  act  there  is 
capacity  to  commit  crime.  It  is  true  the  sixth  request  does  not  present 
the  matter  in  just  this  form;  but  if  knowledge  of  right  and  wrong,  as 
to  the  act,  is  to  be  considered  a  legal  test  of  criminal  accountability, 
it  must  follow  that  those  who  have  such  knowledge  are  accountable, 
as  well  as  that  those  who  have  it  not  are  not  accountable.  And  this 
court  is  now  called  on,  as  a  court  of  law,  to  decide  whether  either  of 
these  tests  shall  be  adopted  in  this  state;   and,  if  so,  which. 

It  would  doubtless  be  convenient  to  adopt  some  such  test.  It 
would,  to  some  extent,  save  the  trouble  of  trying  each  case  as  it 
arises  on  its  own  special  and  peculiar  facts.  At  any  rate,  it  would 
narrow  the  range  of  investigation  to  a  search  for  the  facts  consti- 
tuting the  test  adopted.  But  in  cases  of  this  sort  the  argument  of 
convenience  is  not  to  be  admitted.  No  formal  rule  can  be  applied 
in  settling  questions  which  have  relation  to  liberty  and  life,  merely 
because  it  will  lessen  the  labor  of  the  court  or  jury.  Nor  ought  such 
a  rule  to  be  adopted  upon  the  authority  of  cases,  unless  those  cases 
show  beyond  a  doubt,  not  only  its  existence,  but  that  it  is  founded  in 
reason  and  fundamental  truth.  Expressions  of  even  the  most  emi- 
nent judges  must  not  be  mistaken  for  the  enunciation  of  a  universal 
principle  of  law,  when  it  appears  that  they  were  used  in  charging  the 
jury  upon  the  facts  arising  in  a  particular  case. 

The  instructions  given  also  imply  that  this  is  a  mixed  question  of 
law  and  fact;  that  the  only  element  of  law  which  enters  into  it  is 
that  no  man  shall  be  held  accountable  criminally  for  an  act  which 
was  the  offspring  and  product  of  mental  disease.  Of  the  soundness 
of  this  proposition  there  can  be  no  doubt.  Thus  far  all  are  agreed; 
and  the  doctrine  rests  upon  principles  of  reason,  humanity,  and  jus- 
tice too  firm  and  too  deeply  rooted  to  be  shaken  by  any  narrow  rule 
that  might  be  adopted  on  the  subject.  No  argument  is  needed  to 
show  that  to  hold  that  a  man  may  be  punished  for  what  is  the  offspring 
of  disease  would  be  to  hold  that  he  may  be  punished  for  disease.  Any 
rule  which  makes  that  possible  cannot  be  law. 

It  will  hardly  be  contended,  I  suppose,  that  delusion  or  knowledge 
of  righl  and  wrong  with  reference  to  the  act,  or  any  other  thing  can 
with  any  degree  of  propriety  be  called  a  legal  test  of  the  mental  ca- 
pacity to  commit  crime,  unless  that  capacity  is  determined  absolutely 
in  all  cases,  by  the  presence  or  absence  of  the  fact  which  is  assumed  to 
constitute  the  t<    t. 

If  we  speak  of  delusion,  for  instance,  before  that  can  be  adopted 
as  the  test  in  the  sine  intended  by  the  request  in  tins  ease,  it  must  ap- 
ihat  it  makes  no  difference  whether  the  delusion  has  any  refer 
ence  to  or  connection  with  the  act  or  not.  If  we  say,  as  Erskinc  said 
in  Hadfield's  Case,  that  delusion  is  the  test  when  it  appears  to  have 
produced  the  act,  but  not  when  it  does  not  appear  to  have  produced 
the  act  — that  the  delusion  and  the  act  should  be  connected — we  ad- 


SCC.    1)  INSANITY.  165 

mit  that  delusion  cannot  be  a  legal  test,  because  it  is  not  a  universal 
test. 

And  even  if  it  were  established  that  in  all  cases  where  there  is 
delusion  there  is  not  capacity  to  commit  crime,  with  as  much  certain- 
ty as  that  a  heavy  body  left  free  in  the  air  will  fall  to  the  earth,  it 
still  remains  a  fact.  That  a  heavy  body  will  fall  is  a  fact,  although 
it  is  at  the  same  time  a  law  of  nature.  That  delusion  attends  inca 
pacity  for  crime  would  be  a  fact  still,  although,  were  the  fact  ascer- 
tained to  be  certain  and  universal,  it  might  be  called  a  law  of  men- 
tal disease,  and  might,  therefore,  be  given  to  the  jury  as  a  criterion 
without  any  positive  or  practical  wrong. 

Yet,  in  that  view,  it  would  be  the  law  of  the  land  in  no  other  sens* 
than  the  laws  of  nature  and  physics  may  be  considered  laws  of  the 
land.  Now,  this  court,  sitting  for  the  decision  of  questions  of  law, 
is  not  at  liberty  to  receive  and  consider  evidence  or  weigh  and  deter- 
mine matters  of  fact. 

But  the  very  first  step  in  the  inquiry  to  ascertain  if  there  be  any 
test  or  criterion  that  may  be  safely  given  to  the  jury  on  this  subject 
whether  as  a  fact  universally  true  or  as  a  principle  of  law,  involves 
the  examination  of  an  immense  mass  of  evidence  as  complicated  and 
difficult  to  understand  as  can  well  be  conceived.  Moreover,  it  would 
require  a  degree  of  skill  and  scientific  attainment  which  could  only 
be  reached  by  years  of  special  study  and  intelligent  observation.  Not 
only  ought  all  the  facts  bearing  on  the  question  to  be  collected  from 
every  asylum  for  the  insane  throughout  the  world,  but,  as  an  inflex- 
ible rule  is  to  be  established,  the  facts  of  all  other  cases  where  the 
patient  has  never  received  scientific  treatment  ought  to  be  added  to 
the  stock.  Then,  after  collecting  the  facts  in  this  way,  it  would  be 
necessary  to  compare  cases  and  classes  of  cases  one  with  the  other, 
to  weigh  facts  against  facts,  to  balance  theories  and  opinions,  and  finallv 
to  deduce  a  result  which  might  itself  turn  out  to  be  nothing  more 
than  a  theory  or  opinion  after  all.  At  any  rate,  it  would  be  a  de- 
duction of  fact. 

It  need  not  be  said  that  this  is  not  the  business  of  a  court  of  law 
It  is  a  work  which  can  only  be  reasonably  well  done  by  men  who  de- 
vote their  lives  exclusively  to  its  accomplishment.  Such  a  work  has 
doubtless  been  done,  with  extraordinary  patience  and  ability,  by  our 
distinguished  countryman,  Dr.  Ray;  and  the  result  of  his  laborious 
investigation  is  that  no  test  can  be  found.  He  says:  "To  person? 
practically  acquainted  with  the  insane  mind,  it  is  well  known  that  in 
every  hospital  for  the  insane  are  patients  capable  of  distinguishing  be- 
tween right  and  wrong,  knowing  well  enough  how  to  appreciate  the 
nature  and  legal  consequences  of  their  acts,  acknowledging  the  sanc- 
tions of  religion,  and  never  acting  from  irresistible  impulse,  but  de- 
liberately and  shrewdly."     Ray's  Med.  Jurisp.  Ins.  §  43. 

If  we  were  at  liberty  to  weigh  and  consider  evidence  upon  the  ques- 
tion, it  is  clear  that  such  testimony  must  outweigh  all  the  convenient 


166  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Ch.  5 

formulas  and  arbitrary  dogmas  laid  down  by  lawyers  and  judges  from 
the  time  of  Lord  Hale  to  the  present,  simply  for  the  reason  that  Dr. 
Ray  is  qualified  by  study  and  observation  to  give  an  opinion,  while 
lawyers  and  judges  are  not.  But  we  do  not  consider  evidence  upon 
this  point  at  all.  Whether  there  is  any  universal  test  is  as  clearly  a 
pure  matter  of  fact,  as  is  the  question  what  that  test  may  be. 

In  view  of  these  considerations,  we  are  led  to  the  conclusion  that 
the  instruction  given  to  the  jury  in  this  case,  that  "if  the  defendant 
killed  his  wife  in  a  manner  that  would  be  criminal  and  unlawful  if 
the  defendant  were  sane,  the  verdict  should  be  'not  guilty  by  reason 
of  insanity,'  if  the  killing  was  the  offspring  or  product  of  mental  dis- 
ease in  the  defendant,"  was  right;  that  it  fully  covers  the  only  gen- 
eral, universal  element  of  law  involved  in  the  inquiry;  and,  therefore, 
that  any  further  step  in  the  direction  indicated  by  the  requests  would 
have  been  an  interference  with  the  province  of  the  jury,  and  the  enun- 
ciation of  a  proposition  which  in  its  essence  is  not  law,  and  which' 
could  not  in  any  view  safely  be  given  to  the  jury  as  a  rule  for  their 
guidance,  because,  for  aught  we  can  know,  it  might  have  been  false 
in  fact. 

This  would  seem  to  dispose  of  the  whole  case.  All  the  other  in- 
structions given  are  only  the  direct  logical  consequence  of  this  prin- 
ciple. 

Whether  the  defendant  had  a  mental  disease,  as  before  remarked, 
seems  to  be  as  much  a  question  of  fact  as  whether  he  had  a  bodily 
disease;  and  whether  the  killing  of  his  wife  was  the  product  of  that 
disease  was  also  as  clearly  a  matter  of  fact  as  whether  thirst  and  a 
quickened  pulse  are  the  product  of  fever.  That  it  is  a  difficult  ques- 
tion does  not  change  the  matter  at  all.  The  difficulty  is  intrinsic,  and 
must  be  met  from  whatever  direction  it  may  be  approached.  Enough 
has  already  been  said  as  to  the  use  of  symptoms,  phases,  or  manifes- 
tations of  the  disease  as  legal  tests  of  capacity  to  entertain  a  criminal 
intent.  They  are  all  clearly  matters  of  evidence,  to  be  weighed  by 
the  jury  upon  the  question  whether  the  act  was  the  offspring  of  in- 
sanity. If  it  was,  a  criminal  intent  did  not  produce  it.  If  it  was  not, 
a  criminal  intent  did  produce  it,  and  it  was  crime. 

instructions  as  to  insane  impulse  seem  to  be  quite  correct,  and 
entirely  within  the  same  principle.  If  the  defendant  had  an  insane 
impulse  to  kill  his  wife,  which  he  could  not  control,  then  mental  dis- 
ease produced  the  act.  If  he  could  have  controlled  it.  then  his  will 
must  have  assented  t<>  the  act,  and  it  was  not  caused  by  disease,  but 
by  the  concurrence  of  his  will,  and  was  therefore  crime. 

These  instructions  have  now  been  twice  given  t<>  the  jury  in  capital 
cases  in  this  state  first,  by  Chief  Justice  Perley,  in  State  v.  Pike. 
49  N.  II.  :'.:»!),  6  Am.  Rep.  533,  and  now  again  by  Judge  Doe,  in  the 
before  us.  In  State  v.  Pike  n<>  exceptions  were  taken  to  this 
part  "i"  the  charge,  .-mil  the  questions  here  raised  were  not  before 
the  whole  ''Mint  for  judicial  determination,  although  they  were  printed 


Sec.  4)  INSANITY.  1G7 

in  the  case  as  transferred,  and  no  objection  to  their  form  is  understood 
to  have  been  made. 

But  a  question  was  passed  upon  in  that  case  which,  carried  to  its 
logical  results,  goes  far  towards  settling  most  of  the  questions  raised 
upon  the  instructions  here.  It  was  claimed  that  the  defendant  was 
irresponsible  by  reason  of  a  species  of  insanity  called  "dipsomania." 
The  court  instructed  the  jury  that  "whether  there  is  such  a  mental 
disease  as  dipsomania,  and  whether  the  defendant  had  that  disease,  and 
whether  the  killing  of  Brown  was  the  product  of  such  disease,  were 
questions  of  fact  for  the  jury."  These  instructions  were  specially  ex- 
cepted to  by  the  defendant,  and  were  held  correct.  This  would  seem 
to  be  entirely  inconsistent  with  the  idea  that  either  delusion  or  knowl- 
edge of  right  and  wrong  is,  as  matter  of  law,  a  test  of  criminal  capa- 
city, and  would  also  seem  to  be  about  equivalent  to  holding,  in  gen- 
eral terms,  that  it  was  for  the  jury  to  say  whether  the  killing  was  the 
product  of  mental  disease,  and  return  their  verdict  of  "guilty,"  or 
"not  guilty  by  reason  of  insanity,"  as  they  found  that  fact  to  be. 

We  should  be  slow  to  establish  any  doctrine  on  this  important  sub- 
ject, which  we  could  see  would  be  likely  to  result  in  the  escape  of 
malefactors  from  punishment,  or  afford  encouragement  to  a  fictitious 
defense  of  insanity;  and  no  considerations  of  convenience  or  ease  in 
the  administration  of  the  law,  as  before  observed,  should  be  allowed 
to  weigh  at  all  against  adhering  to  any  doctrine  or  any  course  of  prac- 
tice that  rests  upon  sound  reason,  or  that  appears  to  be  necessary  for 
the  attainment  of  right  results,  whether  such  doctrine  or  practice  is 
supported  by  uniform  authority  or  not. 

Still  it  is  no  objection  to  the  course  of  the  judges  who  tried  this 
case,  and  who  tried  Pike's  Case,  that  it  relieves  the  subject  of  some 
of  its  most  formidable  difficulties  so  far  as  the  court  is  concerned, 
and,  at  the  same  time  furnishes  at  least  one  clear  and  explicit  direc- 
tion which  the  jury  can  understand. 

No  untried  or  doubtful  theory  is  adopted.  The  instruction  given 
was  always  law,  and  always  must  be  law,  while  justice  is  administered 
upon  principles  at  all  consonant  with  the  calls  of  civilization  and  hu- 
manity. The  only  objection  is  that  the  court  did  not  go  further,  and 
undertake  to  explore  a  region  where  all  is  doubt,  uncertainty,  and 
confusion  upon  the  authorities,  and  where  upon  principle  they  had  no 
right  to  go  at  all;  that  they  did  not  undertake  to  lay  down  a  rule, 
where,  if  we  could  allow  ourselves  to  investigate  the  fact,  we  should 
probably  find  there  is  and  can  be  no  rule,  nor  to  enunciate  as  law  a 
pure  matter  of  fact  which  can  only  be  absolutely  known  to  the  Al- 
mighty. 

I  may  add  that  it  confirms  me  in  the  belief  that  we  are  right,  or  at 
least  have  taken  a  step  in  the  right  direction,  to  know  that  the  view 
embodied  in  this  charge  meets  the  approval  of  men  who,  from  great 
experience  in  the  treatment  of  the  insane,  as  well  as  careful  and  long 
study  of  the  phenomena  of  mental  disease,  are  infinitely  better  qualified 


168  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Cll.  5 

to  judge  in  the  matter  than  any  court  or  lawyer  can  be.  See  Ray's 
Medical  Jurisp.  Ins.  (5th  Ed.)  §  44. 

The  satisfaction  with  which  the  charge  to  the  jury  in  State  v.  Pike 
is  understood  to  have  been  received  by  the  most  enlightened  members 
of  the  medical  profession  proves  to  my  mind,  not  that  we  have  thrown 
down  old  landmarks  to  adopt  any  theory  based  on  a  partial,  imper- 
fect, or  visionary  view  of  the  subject,  but  that,  in  a  matter  where  we 
must  inevitably  rely  to  a  great  extent  upon  the  facts  of  science,  we 
have  consented  to  receive  those  facts  as  developed  and  ascertained 
by  the  researches  and  observation  of  our  own  day,  instead  of  adhering 
blindly  to  dogmas  which  were  accepted  as  facts  of  science  and  erro- 
neously promulgated  as  principles  of  law  50  or  100  years  ago. 

The  last  instruction,  that  the  defendant  was  to  be  acquitted  on  the 
ground  of  insanity,  unless  the  jury  were  satisfied  beyond  a  reason- 
able doubt  that  the  killing  was  not  produced  by  mental  disease,  was 
in  accordance  with  State  v.  Bartlett,  43  N.  H.  224,  80  Am.  Dec.  154, 
and  was  correct. 

Exceptions  overruled.2 

2  "The  Criminal  Code  of  Germany,  however,  contains  the  following  pro- 
vision, which  is  said  to  have  been  the  formulated  result  of  a  very  able  dis- 
cussion both  by  the  physicians  and  lawyers  of  that  country:  'There  is  no 
criminal  act  when  the  actor  at  the  time  of  the  offense  is  in  a  state  of  un- 
consciousness or  morbid  disturbance  of  the  mind,  through  which  the  free 
determination  of  his  will  is  excluded.'  14  Encyc.  Brit.  (9th  Ed.)  p.  112.  cit- 
ing Crim.  Code  of  Germany,  §  51  (R.  G.  B.).  The  Code  of  France  provides: 
'There  can  be  no  crime  or  offense  if  the  accused  was  in  a  state  of  madness 
at  tbe  time  of  the  act.'  For  some  time  the  French  tribunals  were  inclined 
to  interpret  this  law  in  such  a  manner  as  to  follow  in  substance  the  law  of 
England.  But  that  construction  has  been  abandoned,  and  the  modern  view 
of  the  medical  profession  is  now  adopted  in  that  country."  Soinerville,  J., 
in  I 'arsons  v.  State.  SI  Ala.  577,  2  South.  854,  60  Am.  Rep.  103. 

"Though  tbe  defense  in  this  case  is  weak-mindedness,  or  imbecility,  yet  the 
same  test  that  of  tbe  ability  to  distinguish  right  from  wrong  in  tbe  doing 
of  tbe  particular  act — must  be  applied  to  imbecility  as  well  as  to  insanity." 
Sherwood,  P.  J.,  in  State  v.  Palmer,  1G1  Mo.  152,  61  S.  W.  651  (1901). 

"All  the  modern  medico-legal  writers  to  whose  writings  we  have  bad  access 
Ize  a  species  of  mental  unsoundness,  connected  with  sleep,  which  they 
commonly  treat  of  under  the  general  head  of  'Somnambulism.'  *  *  * 
They  define  somnolentia  'to  he  the  lapping  over  of  a  profound  Bleep  Into  the 
domain  of  apparent  wakefulness,'  and  say  it  produces  a  state  of  Involuntary 
Intoxication,  which  for  the  time  destroys  moral  agency.  *  *  *  If,  as  claim- 
ed, the  appellanl  was  unconscious  when  he  tired  the  first  shot,  it  cannot  be 
Imputed  to  him  as  a  crime  Nor  is  he  guilty  if  partially  conscious,  it',  upon 
being  partially  awakened,  and  finding  the  deceased  had  bold  of  him  and  was 
shaking  him,  be  Imagined  be  was  being  attacked,  and  believed  himself  In 
danger  of  losing  his  life  or  of  sustaining  greal  bodily  injury  at  the  hands 
of  his  assailant,  be  Bhol  in  good  faith,  believing  it  necessary  to  preserve  hla 
life  or  ins  person  from  greal  harm,  in  such  circumstances  it  docs  not  mat- 
ter whciiar  be  had  reasonable  grounds  for  ins  belief  or  not"  Gofer,  J.,  in 
Pain  v.  Commonwealth,  7s  Ky.  188,  39  Am.  Rep.  213  (1879). 


Sec.  5)  INTOXICATION.  1GI> 

SECTION    5.— INTOXICATION. 


Lastly,  although  he  who  is  drunk  is  for  the  time  non  compos  mentis, 
yet  his  drunkenness  does  not  extenuate  his  act  or  offense  nor  turn  to 
his  avail,  but  it  is  a  great  offense  in  itself,  and,  therefore,  aggravates 
his  offense,  and  doth  not  derogate  from  the  act  which  he  did  during 
that  time,  and  that  as  well  in  cases  touching  his  life,  his  lands,  his 
goods,  as  any  other  thing  that  concerns  him.  Beverley's  Case  (1603) 
4  Coke,  p.  125. 


MARSHALL'S  CASE. 

(Lancaster  Assizes,  1830.     1  Lewin,  C.  C.  76.) 

On  an  indictment  for  stabbing,  under  the  statute: 

Park,  J.,  told  the  jury  that  they  might  take  into  their  considera- 
tion, among  other  circumstances,  the  fact  of  the  prisoner  being  drunk 
at  the  time,  in  order  to  determine  whether  he  acted  upon  a  bona  fide 
apprehension  that  his  person  or  property  was  about  to  be  attacked. 

Note. — In  Goodier's  Case,  York  Summer  Assizes,  1831,  Park,  J.,  directed 
the  jury  to  the  same  effect. 


REX  v.  THOMAS. 

(Monmouth  Assizes,  1S37.    7  Car.  &  P.  817.) 

Indictment  for  maliciously  stabbing.  It  appeared  that  the  prisoner 
and  prosecutor  were  at  a  beer  house  together  with  several  other  per- 
sons. Some  words  passed  between  the  prisoner  and  a  third  person, 
after  which  he  was  seen  walking  up  and  down  the  passage  of  the 
house  with  a  sword  stick  in  his  hand,  with  the  blade  open,  and  was 
heard  to  say:  "If  any  man  strikes  me  I  will  make  him  repent  it."  He 
was  desired  to  put  up  the  stick,  which  he  refused  to  do,  and  shortly 
after  the  prosecutor,  ignorant  of  what  occurred,  but  perceiving  the 
prisoner  was  creating  a  disturbance,  struck  the  prisoner  twice  with  his 
fist,  when  the  prisoner  stabbed  him.  Several  of  the  witnesses  were 
cross-examined  as  to  contrary  statements  before  the  magistrate. 
Parke,  B.,  in  summing  up  the  case  to  the  jury  said  i1 
I  must  also  tell  you  that  if  a  man  makes  himself  voluntarily  drunk 
that  it  is  no  excuse  for  any  crime  he  may  commit  whilst  he  is  so.  He 
must  take  the  consequence  of  his  own  voluntary  act,  or  most  crimes 
would  otherwise  be  unpunished.     But  drunkenness  may  be  taken  into 

i  Part  of  the  opinion  not  relating  to  intoxication  is  omitted. 


170  INTENT   AS   AFFECTED   BY    CONDITIONS.  (Ch.  5 

consideration  in  cases  where  what  the  law  deems  sufficient  provoca- 
tion has  been  given,  because  the  question  is,  in  such  cases,  whether  the 
fatal  act  is  to  be  attributed  to  the  passion  of  anger  excited  by  the  pre- 
vious provocation,  and  that  passion  is  more  easily  excitable  in  a  per- 
son when  in  a  state  of  intoxication  than  when  he  is  sober.  So,  where 
the  question  is  whether  words  have  been  uttered  with  a  deliberate 
purpose,  or  are  merely  low  and  idle  expressions,  the  drunkennness  of 
the  person  uttering  them  is  proper  to  be  considered.  But  if  there  is 
really  a  previous  determination  to  resent  a  slight  affront  in  a  bar- 
barous manner,  the  state  of  drunkenness  in  which  the  prisoner  was 
ought  not  to  be  regarded,  for  it  would  furnish  no  excuse.  You  will 
decide  whether  the  subsequent  act  does  not  furnish  the  best  means  of 
judging  what  the  nature  of  the  previous  expression  really  was. 
Verdict — Not  guilty.2 


KEENAN  v.   COMMONWEALTH. 
(Supreme  Court  of  Pennsylvania,  1SG2.    44  Pa.  55,  84  Am.  Dec.  414.) 

Error  to  the  court  of  oyer  and  terminer  of  Allegheny  county. 

This  was  an  indictment  against  Thomas  B.  Keenan  for  the  murder 
of  John  A.  Obey  on  the  5th  day  of  July,  1862.3 

Under  the  ruling  of  the  court  below  (Sterrett,  P.  J.)  the  defendant 
was  convicted  of  murder  in  the  first  degree.  The  case  was  thereupon 
removedlnto'this  court,  where  the  answers  of  the  court  below  to  cer- 
tain points  which  had  been  propounded  by  the  counsel  for  the  defend- 
ant were  assigned  for  error,  all  of  which  are  sufficiently  presented  in 
the  opinion  of  this  court. 

LowriEj  C.  J.  Our  statute  adopts  the  common-law  definition  of 
murder,  and  then  distinguishes  it  of  two  degrees,  defining  the  first 
degree  specially  by  certain  enumerated  cases,  and  generally  by  the 
words  "any  other  kind  of  willful,  deliberate  and  premeditated  kill- 
ing." It  is  this  general  part  of  the  definition  that  we  have  to  apply  in 
the  present  case. 

A  careful  study  of  our  jurisprudence  on  this  subject  clearly  reveals 
the  fact  that  such  terms  as  a  deliberate  purpose  or  a  deliberate  and 
prenT  intent  to  kill,  or  a  specific  intent  to  take  life,  are  some- 

times uted    for    the    words    of   the    statute;     yet   our    reported 

is  very  uniform  in  holding  that  the  true  criterion  of  the 
c  is  the  intent  to  take  life.     The  deliberation  and  premedita- 
tion required  by  the  statute  are  not  upon  the  intent,  but  upon  the  kill- 
ing.    It  is  deliberation  and  premeditation  enough  to  form  the  intent 
to  kill,  and  not  upon  the  intent  alter  it  has  been  formed.     An  intent 

2  Accord:    People  v.  Rogers,  18  N.  Y.  0,  72  Am.  Dec.  484  (1S5S). 
*  Part  «>r  thl  omitted. 


■    SCC.  5)  INTOXICATION.  171 

distinctly  formed,  even  "for  a  moment"  before  it  is  carried  into  act, 
is  enough. 

What  the  definition  requires,  therefore,  is  a  distinctly  formed  in- 
tent to  kill,  not  in  self-defense,  and  without  adequate  provocation. 
It  requires  the  malice  prepense  or  aforethought  of  the  common-law 
definition  of  murder  to  be,  not  a  general  malice,  but  a  special  malice 
that  aims  at  the  life  of  a  person.  This  distinctly  formed  intent  to 
take  life  is  easily  distinguished,  in  the  general,  from  the  instinctive 
and  spontaneous  reaction  of  mind  and  body  against  insult  and  in- 
jury, which  is  often  the  result  of  no  distinctly  formed  intention,  and 
also  from  those  cases  of  previous  and  deliberate  intention  to  kill, 
which  may  override  even  what,  without  it,  would  be  adequate  provo- 
cation given  at  the  time  of  the  killing. 

Keeping  this  common  understanding  of  the  definition  in  mind,  we 
shall  also  get  clear  of  the  influence  of  the  cases  in  other  states,  where 
the  terms  "deliberate"  and  "premeditated"  are  applied  to  the  malice 
or  intent,  and  not  to  the  act,  and  thus  seem  to  require  a  purpose  brood- 
ed over,  formed,  and  matured  before  the  occasion  at  which  it  is  car- 
ried into  act.  Under  such  a  definition  of  the  intention,  all  our  juris- 
prudence by  which  malice  and  intent  are  implied  from  the  character 
of  the  act,  and  from  the  deadly  nature  of  the  weapon  used,  would  be 
set  aside;  for  we  could  not,  from  these,  imply  such  a  previous  and 
deliberate,  but  only  a  distinctly  formed  intent,  and  this  involves  de- 
liberation and  premeditation,  though  they  may  be  very  brief.  We 
should  therefore  blot  out  all  our  law  relative  to  implied  intent  or  mal- 
ice, and  require  it  to  be  always  proved  as  express.  And  this  would 
be  a  most  disastrous  result,  for  the  most  deliberate  murderers  are  usual- 
ly those  who  know  how  to  conceal  their  intent  until  the  occasion  arises 
for  the  execution  of  it. 

And,  still  keeping  in  mind  our  usual  understanding  of  this  general 
part  of  the  definition  of  murder  in  the  first  degree,  we  are  further  pre- 
pared for  an  intelligent  appreciation  of  the  influence  which  the  fact 
of  intoxication  may  legitimately  have  on  the  degree  of  criminality, 
and  in  the  formation  of  the  intent  to  kill,  and  in  the  ascertainment  of  it. 

The  learned  judge  of  the  oyer  and  terminer  charged  the  jury  that 
the  prisoner's  intoxication  was  not  such  an  excuse  as  would  allow 
a  less  than  ordinarily  adequate  provocation  to  palliate  the  offense,  un- 
less it  was  so  great  as  to  render  him  "unable  to  form  a  willful,  de- 
liberate, and  premeditated  design  to  kill,"  or,  as  he  afterwards  ex- 
presses the  thought,  "of  judging  of  his  acts  and  their  legitimate  con- 
sequences." The  first  of  these  expressions  had  already  been  very  cor- 
rectly and  adequately  explained  to  the  jury,  and  the  second  one  plain- 
ly means  that,  in  using  a  deadly  weapon  in  a  deadly  way,  the  prison- 
er is  charged  with  the  ordinary  consequences  of  his  acts,  if  he  was 
not  so  drunk  as  to  be  unable  to  judge  that  such  would  ordinarily  be 
the  consequence  of  such  acts.  The  two  forms  of  expression  are 
therefore  the  same  in  their  meaning-. 


172  INTENT    AS   AFFECTED   BY    CONDITIONS.  (Ch.  5 

We  discover  no  error  in  this  instruction,  and  think  it  is  in  substan- 
tial accordance  with  all  the  best  considered  judicial  precedents.  And 
if  we  keep  clear  of  the  peculiarities  found  in  other  states,  arising  ei- 
ther from  misapprehension  or  from  a  differently  worded  statute,  we 
shall  have  little  difficulty  in  recognizing  its  correctness. 

No' one  pretends  that  intoxication  is,  of  itself,  an  excuse  or  pallia- 
tion of  a  crime.  If  it  were,  all  crimes  would,  in  a  great  measure,  de- 
pend for  their  criminality  on  the  pleasure  of  their  perpetrators,  since 
they  may  pass  into  that  state  when  they  will.  But  it  is  argued  that, 
because  intoxication  produces  a  state  of  mind  that  is  easily  excited 
by  provocation,  therefore  the  crimes  committed  under  such  intoxica- 
tion and  provocation  are  less  criminal  than  when  committed  in  a  state 
of  sobriety  under  the  same  provocation.  We  are  very  sure  that  no  stat- 
ute will  ever  announce  such  a  rule,  and  that  we  are  not  authorized  to 
announce  it  in  interpreting  this  statute. 

Stated  in  its  most  general  form,  it  amounts  to  this:  That,  because 
the  mind  usually  receives  provocation  with  an  intensity  proportioned 
to  its  own  excitement  or  excitability,  therefore  the  act  of  provocation 
must  be  measured,  not  by  its  own  character  and  its  ordinary  effect,  but 
by  the  state  and  habit  of  the  mind  that  receives  it.  Then,  measured  by 
this  rule,  the  crimes  of  a  proud,  or  captious,  or  selfish,  or  habitually  ill- 
natured  man,  or  one  who  eats  or  fasts  too  much,  or  of  one  who  is  habit- 
ually quarrelsome,  covetous,  dishonest,  or  thievish,  or  who,  by  any  sort 
of  indulgence,  fault,  or  vice,  renders  himself  very  easily  excitable,  or 
very  subject  to  temptation,  are  much  less  criminal  than  those  of  a  mod- 
erate, well-tempered  and  orderly  citizen,  because  to  the  former  a  very 
small  provocation  or  temptation  becomes  adequate  to  excuse  or  pal- 
liate any  crime.  If  such  were  the  rule,  a  defendant  would  be  much 
more  likely  to  injure  than  to  benefit  his  case  by  showing  a  good  char- 
acter, and  the  law  would  present  no  inducement  to  men  to  try  to  rise 
to  the  standard  of  even  ordinary  social  morality. 

Of  course,  it  is  impossible  that  such  a  principle  can  be  a  rule  of 
law.  If  it  were  admitted,  it  could  not  be  administered;  for  no  judi- 
cial tribunal  can  have  time  or  competence  for  such  a  thorough  in- 
vestigation of  the  special  character  or  state  of  each  individual  mind 
as  the  rule  requires,  and  therefore  it  would  necessarily  jump  to  a 
conclusion,  such  as  the  caprice  or  prejudice  or  other  influence  of  the 
moment  would  dictate. 

The  prisoner  was  somewhat  intoxicated  when,  with  six  or  seven 
companions,  he  entered  the  passenger  car,  and  he  and  they  seem  to  have 
behaved  badly  and  noisily,  and  w-c<\  very  profane  language  there,  so 
that  several  persons  preferred  walking  and  left  the  car.  Though  they 
wen-  twice  '1  by  the  conductor  to  be  quirt,  the  prisoner  used 

abusive  and  threatening  language  in  reply,  and  his  companions  and 
he  persi  ted  in  their  ill  conduct,  and  he  expressed  his  determination 
to  remain.    Then  the  conductor  took  him  by  the  lapel  of  his  coat  and 
ding  to  put  linn  OUt,  when  lie  struck  the  conductor  and  was 


Sec.  5)  INTOXICATION.  17.'! 

struck  in  return,  and  then  his  companions  joined  in  the  scuffle,  and 
he  drew  a  knife  and  by  several  strokes  of  it  mortally  wounded  the  con- 
ductor. 

It  is  to  such  evidence  as  this  that  the  judge's  charge  relates,  and  it 
seems  to  be  entirely  relevant,  adequate,  and  correct,  and  free  from 
any  invasion  of  the  functions  of  the  jury.  And  we  say  this  with  spe- 
cial reference  to  those  parts  of  the  charge  which  say  that  the  prisoner 
ought  to  be  taken  to  have  intended  the  natural  and  usual  consequences 
of  the  act  of  using  the  knife  in  the  way  he  did ;  that  the  conductor 
had  a  right  to  put  out  a  passenger  so  misbehaving;  that  the  prisoner's 
resistance  and  the  blow  struck  by  him  were  his  own  provocation  of 
the  struggle  in  which  he  used  the  knife,  and  neither  the  struggle  nor 
the  blow  received  in  return  can  be  any  excuse  for  its  use.  None  of 
the  other  points  need  any  special  notice.  Nor  do  we  find  any  error 
in  impaneling  the  jury  or  in  the  admission  or  rejection  of  evidence. 
We  have  considered  the  prisoner's  case  with  all  the  caution  and  con- 
cern which  its  terrible  penalties  are  calculated  to  inspire,  and  it  is 
with  much  sorrow,  on  his  account,  that  we  are  compelled  to  say  that 
we  discover  no  valid  ground  for  granting  him  a  new  trial. 

Sentence  affirmed  and  record  remitted.2 


FLANIGAN  v.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1881.    86  N.  Y.  554,  40  Am.  Rep.  556.) 

Error  to  the  General  Term  of  the  Superior  Court  of  the  city  of 
Buffalo,  to  review  judgment  entered  upon  an  order  made  July  23, 
1881,  which  affirmed  a  judgment  of  a  Criminal  Term  of  said  court, 
entered  upon  a  verdict  convicting  the  plaintiff  in  error  of  the  crime 
of  murder  in  the  first  degree. 

The  plaintiff  in  error  was  indicted  for  the  murder  of  one  John 
Karins.  It  appeared  by  the  evidence  that  the  deceased  kept  a  board- 
ing house  for  laborers  upon  a  railroad,  and  also  was  foreman  or  boss. 
The  prisoner  boarded  with  Karins,  and  had  formerly  been  at  work- 
under  him,  but  about  three  months  before  the  murder  Karins  caused 
him  to  be  discharged.  The  prisoner  went  to  Karins'  room  about  10  or 
11  p.  m.,  and  stabbed  him  while  he  was  asleep.  The  prisoner  was  in 
the  habit  of  drinking  to  excess,  and  was  frequently  intoxicated.  He 
had  been  drinking  heavily  on  the  day  of  the  murder.3 

Miller,  J.  It  is  claimed  that  the  judge  erred  upon  the  trial  in  re- 
fusing to  charge,  as  requested  by  the  prisoner's  counsel,  "that,  from 
all  the  evidence  in  the  case,  the  jury  may  believe,  if  they  see  fit,  that 

2  Accord:  People  v.   Williams,  43  Cal.   344   (1872).     Cf.  Haile  v.   State,  11 
Humph.  (Tenn.)  154  (1850). 
3  Part  of  this  case  is  omitted. 

i 


17-4  INTENT   AS   AFFECTED   BY    CONDITIONS.  (Cll.  5 

the  prisoner  may  have  been  the  victim  of  an  appetite  for  drink,  en- 
tirely overcoming  his  will,  and  amounting  to  a  disease,  and  that,  if 
.   they  so  believe,  they  must  acquit  the  prisoner,  unless  they  believe,  be- 
:  yond  a  reasonable  doubt,  that  the  act  was  not  committed  while  his 
mind  was  overwhelmed  by  the  effects  of  the  liquor  so  taken."     The 
)  proposition  contained  in  this  request  was  to  the  effect  that  the  jury 
were  authorized  to  believe  that  the  prisoner  was  the  subject  of  an  ap- 
'  petite  for  intoxicating  drinks,  which  entirely  controlled  his  will,  and  to 
te  extent  of  becoming  a  disease,  and  that  he  was  not  responsible  un- 
»s  the  crime  was  committed  while  he  was  not  under  the  influence  of 
such  disease. 

The  effect  of  this  proposition  would  be  to  excuse  the  prisoner  from 
■  the  consequences  of  the  crime  committed,  if  he  was  laboring  under 
intoxication  so  that  his  will  was  overcome,  and  not  under  his  control 
at  the  time ;  in  other  words,  that  drunkenness,  if  carried  to  the  extent 
of  producing  incapacity  to  control  the  action  of  the  mind  and  will  of 
the  prisoner,  would  be  an  excuse  for  the  crime  committed. 

The  rule  is  well  settled  that  voluntary  intoxication  of  one  who, 
without  provocation,  commits  a  homicide,  although  amounting  to  a 
frenzy,  does  not  exempt  him  from  the  same  construction  of  his  con- 
duct, and  the  same  legal  inferences,  upon  the  question  of  intent  as 
affecting  the  grade  of  his  crime,  which  are  applicable  to  a  person  en- 
tirely sober.    People  v.  Rogers,  18  N.  Y.  9,  72  Am.  Dec.  484. 

Within  the  rule  laid  down  in  the  case  cited,  we  think  that  the  re- 
quest to  charge  cannot  be  sustained.  The  position  of  the  learned 
counsel  for  the  prisoner  is  that  he  had  a  right  to  go  to  the  jury  upon 
the  question  whether  intoxication  was  a  disease,  as  described  in  the 
request,  and  whether  the  prisoner  was  afflicted  with  it,  and,  if  the  jury 
found  both  of  these  facts,  the  drunkenness  could  not  have  been  vol- 
untary, and,  if  the  jury  believed  the  mind  was  overwhelmed  by  means 
thereof,  that  the  prisoner  must  be  excused  as  an  insane  man.  It  may 
be  answered  that  no  such  distinct  request  was  made ;  but,  aside  from 
this,  the  position  taken  would  be  adverse  to  the  principle  which  has 
n  established  by  a  long  series  of  decisions,  and,  if  enforced,  might 
d  to  exonerate  offenders  for  crimes  committed  by  them  when  under 
the  influence  of  intoxicating  drinks,  and  thus  furnish  an  excuse  for  the 
comnii  ion  of  the  most  heinous  offenses.  The  authorities  all  agree 
upon  the  proposition  that  mental  alienation,  produced  by  drinking  in- 
dcating  liquors,  furnishes  no  immunity  for  crime,  and,  to  sustain 
^     the  doctrin<  ed,   it  would  be  necessary  to  overrule  this  well-es- 

tablished principle.  The  proposition  contained  in  the  request  was  also 
objectionable,  as  it  assumed  that,  if  the  prisoner  had  become  the  vic- 
tim of  an  appetite  for  Strong  drinks,  so  as  to  overcome  his  will,  and 
amounting  to  a  d  i  ven  although  he  was  able  to  distinguish  be- 

lli and  wrong  at  the  time  of,  and  with  respeel  to,  the  art  com- 
mitted, he  should  be  acquitted.  Flanagan  v.  People,  52  X.  Y.  467,  Jl 
Am.  Rep.  731. 


- 


Sec.  0)  INTOXICATION.  175 

The  finding  of  the  jury  that  the  prisoner  was  affected  with  the  al- 
leged disease  would  not  exonerate  him  from  responsibility  for  the 
crime,  and  his  intoxication  did  not  authorize  the  court  to  charge  as 
requested. 

No  error  was,  therefore,  committed  in  the  refusal  of  the  judge  to 
grant  the  request,  nor  was  there  any  error  in  the  refusal  of  the  judge 
to  charge,  as  requested,  that  the  jury  might  "take  into  consideration 
the  fact  of  drunkenness  as  affecting  each  of  the  questions  of  delibera- 
tion and  premeditation." 

The  question  presented  by  this  request  has  been  the  subject  of  con- 
sideration in  the  reported  decisions  in  the  courts  of  this  state.  In 
People  v.  Rogers,  supra,  a  request  was  made  by  the  prisoner's  coun- 
sel to  charge  the  jury  to  the  effect  that  drunkenness  might  exist  to 
such  a  degree  that  neither  an  intention  to  murder  nor  a  motive  for 
the  act  could  be  imputed  to  the  prisoner.  The  request  was  refused, 
and  Denio,  J.,  in  discussing  the  question,  says:  "This  would  be  pre- 
cisely the  same  thing  as  advising  them  that  they  might  acquit  of  mur- 
der on  account  of  the  prisoner's  intoxication,  if  they  thought  it  suffi- 
cient in  degree.  It  has  been  shown  that  this  would  be  opposed  to  a 
well-established  principle  of  law."  He  further  remarks:  "The  judge 
ought  to  have  charged  that,  if  a  man  makes  himself  voluntarily  drunk, 
that  is  no  excuse  for  any  crime  he  may  commit  while  he  is  so,  and 
that  he  must  take  the  consequences  of  his  own  voluntary  act."  The 
doctrine  thus  laid  down  in  principle  would  sustain  the  refusal  of  the 
judge  to  charge  as  requested  in  the  case  at  bar.  In  Kenny  v.  People, 
31  N.  Y.  330,  the  prisoner  was  convicted  of  murder  in  the  first  degree, 
committed  while  in  a  state  of  voluntary  intoxication,  upon  a  sudden 
impulse.  The  court  instructed  the  jury  that  voluntary  intoxication 
can  furnish  no  excuse  or  immunity  for  crime,  and  so  long  as  the  of- 
fender is  capable  of  conceiving  a  design  he  will  be  presumed,  in  the 
absence  of  contrary  proof,  to  have  intended  the  natural  consequences 
of  his  own  acts.  The  judge  was  requested  to  charge,  among  other 
things,  that  intoxication  may  be  considered  in  determining  whether 
the  homicide  was  committed  by  a  premeditated  design,  which  was  re- 
fused, and  it  was  held  by  this  court  that  there  was  no  error  in  de- 
clining to  charge  as  requested,  and  Potter,  J.,  cites  from  People  v. 
Rogers  the  remarks  we  have  already  quoted  from  the  opinion  in  that 
case,  and  says  that  "People  v.  Rogers,  and  the  opinions  delivered 
therein  and  the  authorities  cited,  are  conclusive,  and  control  this  case." 
He  further  remarks  that  "the  rule  established  in  that  case,  and,  in 
fact,  the  uniform  rule  in  all  the  cases,  is  that,  where  the  act  of  killing 
is  unequivocal  and  unprovoked,  the  fact  that  it  was  committed  while 
the  perpetrator  was  intoxicated  cannot  be  allowed  to  affect  the  legal 
character  of  the  crime."  This  case  is  directly  in  point  in  regard  to 
the  subject  of  premeditation,  and  the  principle  laid  down  would  seem 
to  cover  deliberation  also.  As,  however,  the  judge  subsequently,  in 
response  to  a  request  made  by  the  prisoner's  counsel  to  the  effect  that 


176  INTENT   AS   AFFECTED   BY    CONDITIONS.  (Ch.  5 

the  jury  might  take  into  consideration  the  question  of  drunkenness  as 
affecting  the  fact  of  deliberation,  said  that  he  had  so  charged,  and 
had  left  it  to  the  jury  to  determine  as  to  the  degree  of  murder  and 
whether  there  was  deliberation,  and  thus  allowed  the  jury  to  consid- 
er the  intoxication  of  the  prisoner  in  reference  to  deliberation,  it  is 
not  necessary  to  determine  the  question  whether  the  refusal  to  charge 
as  to  deliberation  was  erroneous. 

The  judge  also  charged,  in  response  to  a  request  of  the  prisoner's 
counsel,  that,  if  the  jury  believed  that  the  prisoner  was  under  the  in- 
fluence of  liquor  or  drink  at  the  time  of  the  commission  of  the  act, 
they  might  take  into  consideration  the  drunkenness  of  the  prisoner, 
as  to  whether  it  did  not  render  more  weighty  the  presumption  of  his 
having  yielded  to  sudden  passion  rather  than  to  previous  malice.  In 
an  earlier  portion  of  his  charge,  he  stated  that  premeditation  and  delib- 
eration was  essential  to  establish  murder  in  the  first  degree,  and  the 
entire  charge  on  the  question  discussed  was  quite  as  favorable  to  the 
prisoner  as  the  evidence  warranted.  The  evidence  was  quite  clear 
as  to  the  intention  of  the  prisoner,  and  to  sanction  a  rule  that  his  drunk- 
enness was  an  excuse  would  be  adverse  to  the  whole  current  of  author- 
ity and  what  has  been  understood  to  be  well-established  law. 

The  judgment  should  therefore  be  affirmed,  and  the  record  remit- 
ted to  the  court  below,  with  directions  to  proceed  as  required  by  law. 
All  concur. 

Andrews,  J.,  entertained  some  doubt  upon  the  point  whether  the 
court  did  not  err  in  refusing  to  charge  that  the  jury  might  consider 
the  fact  of  drunkenness  upon  the  point  of  premeditation,  as  well  as 
upon  the  point  of  deliberation. 

Judgment  affirmed. 


STATE  v.  HAAB. 
(Supreme  Court  of  Louisiana,  1901.    105  La.  230,  29  South.  725.) 

Nicholas,  C.  J.  In  this  case,  defendant,  Fred.  H.  Haab,  indicted 
for  murder,  convicted  of  manslaughter,  and  sentenced  to  imprison- 
ment for  six  years  at  hard  labor  in  the  penitentiary,  has  appealed  from 
the  sentence  rendered,  upon  a  number  of  grounds  embodied  in  bills 
of  exception  and  assignment  of  error,  which  we  have  examined  with 
great  care.1 

We  think  that  the  evidence  disclosed  that  for  some  time  previous  to 
the  homicide,  at  the  time  of  the  homicide,  and  up  to  the  time  of  his  ar- 
rest, the  accused  had  been  continually  drinking  heavily  and  getting 
drunk  ;  that  he  was  drunk  at  the  time  of  the  homicide.  It  is  claimed 
for  the  defense  that  during  this  whole  period  the  condition  of  his  mind 
was  such  as  to  render  him  unable  to  distinguish  right  from  wrong,  and 

»  Part  of  the  opinion  is  omitted 


j 


Sec.  5)  INTOXICATION.  177 

that  his  long  continuance  in  excessive  drinking  had  brought  him  into 
such  a  condition  that  he  was  unable  to  resist  drinking  and  getting 
drunk ;  that  his  condition  o,f  mind  was  such  as  to  give  rise  to  delusions 
on  his  part  that  he  was  about  to  be  attacked  and  killed. 

It  is  claimed  that  during  this  long  debauch  he  had  delirium  tremens, 
also  at  some  time  prior  to  the  homicide.  It  is  claimed  that  there  was 
evidence  to  show  that  he  was  in  fact  crazy  or  insane  at  the  time  of  the 
homicide,  and  that,  though  this  was  the  result  of  heavy  drinking,  the 
accused  was,  nevertheless,  excusable  for  the  homicide. 

Referring  to  one  of  the  special  charges  requested  by  the  accused, 
wherein  reference  is  made  to  a  person  being  first  crazy,  and  then  get- 
ting drunk,  and  while  "crazy  drunk"  committing  homicide,  the  court 
said:  "No  evidence  supports  this  charge.  The  accused  was  never  de- 
ranged before  this  particular  spree,  nor  after.  It  was  one  continuous 
debauch,  beginning,  according  to  his  witnesses,  about  six  weeks  be- 
fore the  homicide,  while  the  alleged  insanity  appeared  about  two 
weeks  before  the  homicide.  After  the  killing  the  accused  recovered  in  a 
few  days.  Drunkenness  pre-existed  the  alleged  insanity."  The  judge 
further  said,  that  he  had,  in  his  general  charge,  announced  the  principles — 
of  law  declared  in  that  charge,  though  he  did  not  think  it  applied  to  the_ 
defendant's  case.  He  did  charge  that  "if  the  intoxication  was  the  result 
of  pre-existing  insanity,  and  the  accused,  by  reason  of  such  pre-existing 
insanity,  could  not  overcome  his  desire  to  gratify  his  thirst  for  drink, 
then  such  insanity  would  be  the  actuating  cause  of  the  crime,  and  the 
jury  should  so  consider  it.  If,  however,  his  excessive  indulgence  in 
liquor  was  caused  by  his  own  negligence,  and  he  had  an  opportunity 
of  correcting  his  weakness,  and  failed  to  do  so,  he  is  responsible  for 
the  results  of  his  own  excesses,  accordingly  as  you  have  been  instruct- 
ed in  this  charge — that  is,  if  a  temporary  result,  he  would  be  responsi- 
ble ;  if  a  permanent  result,  he  wrould  be  irresponsible." 

The  district  judge,  at  the  foot  of  the  bill  of  exceptions  taken  by  the 
accused  to  his  refusal  to  give  to  the  jury  the  special  charge  that  "the 
law  recognizes  the  existence  of  a  form  of  diseased  mind  known  as  de- 
lirium tremens,  induced  by  the  excessive  use  of  stimulating  drink, 
and  in  the  event  of  a  homicide  committed  by  one  laboring  under  such 
disease  to  a  degree  that  dethrones  reason  and  prevents  him  from 
knowing  the  difference  between  right  and  wrong,  such  homicide  would 
be  excusable,  although  such  mental  disease  was  not  permanent,  and 
was  due  to  the  excessive  drinking  of  alcoholic  stimulants,"  made  the 
following  statement,  evidently  intended  for  the  Supreme  Court's  con- 
sideration, and  not  that  of  the  jury: 

"If  Haab's  condition  at  the  time  he  fired  the  fatal  shot  could  be 
properly  designated  as  delirium  tremens  (which  I  deny),  it  must  bf 
shown  to  be : 

"(1)  A  fixed,  settled,  or  permanent  condition,  and  not  a  temporary 
one,  as  in  this  case.     If  a  man  voluntarily  drinks  to  excess,  tempo- 
Mik.Ce.L.— 12 

I 

4-W  k  v  SM 


178  INTENT   AS   AFFECTED   BY   CONDITIONS.  (Cll.  5  - 

rarily  destroying  his  mental  soundness  to  such  an  extent  as  not  to 
know  the  difference  between  right  and  wrong,  and  while  in  this  con- 
dition commits  an  unlawful  Jiomicide^Jiis  act  is  inexcusable,  whether 
you  designate  his  mental  condition  as  simple  drunk,  drunk  to  stupe- 
faction, crazy  drunk,  or  insane  dementia,  or  delirium  tremens. 
The  temporary  character  of  his  affection  makes  him  responsible.  A 
state  of  disease  brought  about  by  a  person's  own  act,  as  delirium  tre- 
mens caused  by  excessive  drinking,  is  no  excuse  for  committing  a 
crime,  unless  the  disease  so  produced  is  permanent.  Withaus  &  Beek- 
er,  vol.  3,  page  491;  1  Hale,  P.  C.  32;  4  Black,  26;  State  v.  Kraemer, 
49  La.  Ann.  774,  22  South.  254,  62  Am.  St.  Rep.  664.  This  is  the 
common  law. 

"(2)  It  must  also  be  shown  that  the  delirium  tremens  was  not  the 
immediate  product  of  excessive  drinking,  but  a  remote  consequence  of 
it.  The  facts  are  that  Haab's  mental  condition  may  have  been  un- 
sound at  the  time  of  the  homicide,  but  was  the  immediate  result  of 
his  undue  indulgence  in  spirituous  liquors,  and  not  the  result  of  any 
previous  sprees  or  drunkenness;  that  after  the  killing  he  was  jailed, 
and  recovered  in  five  or  six  days  permanently.  Under  this  state  of 
facts  the  court  declined  to  make  any  distinctions  with  reference  to  his 
unsound  condition  of  mind.  If  he  was  merely  'crazy  drunk,'  as  it  is 
vulgarly  called,  he  would  be  just  as  much  entitled  to  an  acquittal, 
if  he  could  not  tell  the  difference  between  right  and  wrong,  as  he 
would  be  if  his  condition  was  designated  as  a  delirium. 

"Criminal  indulgence  in  the  use  of  spirituous  liquors  would  be  the 
basis  of  both  conditions." 

Under  other  bills  the  court  said : 

"There  was  no  evidence  to  show  that  delusion  in  this  case  was  oc- 
casioned by  a  'fixed'  frenzy.  There  was  nothing  'fixed'  in  defendant's 
mental  condition.  The  evidence  shows  that  his  alleged  mental  de- 
rangement as  a  fact  was  temporary,  and  was  created  by  the  excessive 
use  of  spirituous  liquors.  The  delusions,  if  any,  were  incidents  to  the 
excessive  drinking.  As  to  the  statement  that  this  accused  was  both 
drunk  and  insane:  This  phraseology  may  be  misleading.  It  may  im- 
ply there  was  evidence  to  show  that  the  alleged  insanity  and  drunken- 
ness were  two  separate  and  distinct  conditions  proceeding  from  dif- 
ferent causes.  There  was  no  evidence  in  support  of  such  a  fact.  The 
nee  showed  that  Haab's  symptoms,  whatever  they  were,  proceed- 
ed from  one  and  the  same  cause,  and  were  its  immediate  and  connect- 
ing effects,  differing  only  in  degree.  Naturally,  the  continued  use  of 
spirituous  liquors  on  one  debauch  withoul  interruption,  as  in  this  case, 
would  inti  ach  succeeding  effect.     A  man  who  becomes  'crazy 

drunk'  reaches  this  condition  by  stages." 

Referring  to  one  of  the  charges  requested,  but  refused,  the  court 
said: 

"ft  failed  to  distinguish  between  a  mental  unsoundness,  the  imme- 
diate re  nil  of  exce    ive  drink,  and  one  by  long-continued  habit,  a  re- 


Sec.  5)  INTOXICATION.  179 

mote  consequence  of  it.  If  one  should  become  voluntarily  drunk  in 
the  morning,  indulging  to  such  excess  during  the  day  as  to  lose  all 
power  of  controlling  the  desire  for  drink,  and  continuing  his  excesses 
at  night,  until  drunk  to  madness,  and  in  this  condition  should  unlawful- 
ly slay  another,  such  killing,  under  the  charge  requested,  would  be 
excusable." 

In  his  reasons  for  refusing  a  new  trial  the  judge  said: 

"The  accused  began  drinking  immoderately,  and  was  under  the 
influence  of  liquor  to  a  greater  or  less  degree  continually  and  with- 
out intermission  for  two  weeks  before  the  homicide,  until  its  effects 
wore  off,  after  his  arrest  and  incarceration,  when  he  ceased  drinking. 
It  makes  no  difference  by  what  terms  you  designate  the  temporary 
effects  of  his  excesses,  whether  called  an  ordinary  drunk,  drunk  to 
stupefaction,  delirium  tremens,  drunk  to  frenzy,  insanity,  etc.,  if  it 
were  the  immediate  product  of  this  particular  debauch,  he  is  respon- 
sible for  his  acts  under  its  influence.  There  was  no  evidence  what- 
ever that  Haab's  condition  was  a  remote  consequence  of  long-contin- 
ued prior  excesses,  nor  that  he  had  ever  been  in  this  condition  before. 
In  the  opinion  of  the  court,  at  the  time  of  the  firing  of  the  fatal  shot 
Haab  was  not  suffering  from  delirium  tremens.  He  was  merely  af- 
flicted with  that  nervousness  that  always  accompanies  immoderate  in- 
dulgence in  liquor." 

We  have  referred  to  United  States  v.  Drew,  cited  by  counsel,  and 
reported  in  5  Mason  (U.  S.)  29,  Fed.  Cas.  No.  14,993.  The  accused 
upon  an  admitted  state  of  facts  was  declared  insane  and  discharged. 
In  the  course  of  his  opinion  in  the  case,  Judge  Story  Sised  the  follow- 
ing language : 

"In  general,  insanity  is  an  excuse  for  the  commission  of  every 
crime,  because  the  party  has  not  the  possession  of  that  reason  which 
includes  responsibility.  An  exception  is  when  the  crime  is  commit- 
ted by  a  party  while  in  a  state  of  intoxication ;  the  law  not  permit- 
ting a  man  to  avail  himself  of  his  own  gross  vice  and  misconduct  to 
shelter  himself  from  the  legal  consequences  of  such  crime.  But  the, 
crime  must  take  and  be  the  immediate  result  of  a  fit  of  intoxication,  and 
while  it  lasts,  and  not,  as  in  this  case,  a  remote  consequence,  superin- 
duced by  the  antecedent  exhaustion  of  the  party  arising  from  gross 
and  habitual  drunkenness.  However  criminal,  in  a  moral  point  of 
view,  such  an  indulgence  is,  and  however  justly  a  party  may  be  re- 
sponsible for  his  acts  arising  from  it  to  Almighty  God,  human  tribu- 
nals are  generally  restricted  from  punishing  them,  since  they  are  not 
the  acts  of  a  reasonable  being.  Had  the  crime  been  committed  while 
defendant  was  in  a  fit  of  intoxication,  he  would  have  been  liable  to 
be  convicted  of  murder.  As  he  was  not  then  intoxicated,  but  merely 
insane  from  an  abstinence  from  liquor,  he  cannot  be  pronounced  guil- 
ty of  the  offense.  The  law  looks  to  the  immediate  and  not  to  the  re- 
mote cause — to  the  actual  state  of  the  party,  and  not  to  the  causes 
which  remotely  caused  it. 


ISO  INTENT   AS   AFFECTED    BY    CONDITIONS.  (Ch.  5 

"Many  species  of  insanity  arise  remotely  from  what,  in  a  moral 
view,  is  a  criminal  negligence  or  fault  of  the  party,  as  from  religious 
melancholy,  undue  exposure,  extravagant  pride,  ambition,  etc.  Yet 
such  immunity  has  always  been  deemed  a  sufficient  excuse  for  any 
crime  done  under  its  influence." 

We  think  it  fairly  appears  from  the  recitals  of  the  accused  and 
those  of  the  judge  that  the  accused  was  in  a  state  of  intoxication  at 
the  time  of  the  homicide,  and  that  his  mental  condition  at  that  time, 
whatever  it  might  be,  was  the  immediate  and  direct  result,  and  not 
the  remote  result,  of  voluntary  drunkenness.  When  we  say  direct 
and  immediate  result,  we  mean  to  say  that  it  arose  during  a  condition 
of  drunkenness  and  pending  a  single,  continuing,  voluntary,  drunken 
debauch,  which  at  its  origin  started  with  the  accused  in  a  condition  of 
sanity.  The  results  were  in  a  legal  sense  immediate  and  direct  results, 
though  the  beginning  of  the  drunken  debauch  may  have  dated  some 
days  back,  or  even  some  weeks  before  the  homicide. 

We  think,  under  the  recitals  in  the  case,  that  it  is  precisely  such  a 
one  as  Mr.  Justice  Story  refers  to  in  which  he  says :  "Insanity,  or  a 
condition  of  mind  substantially  that  of  insanity,  would  not  serve  as 
a  shelter  or  a  protection  against  crime." 

We  think  that  this  was  the  view  taken  by  the  district  judge  of  the 
fact  and  law  of  the  case,  a  view  which  he  endeavored  to  place  be- 
fore the  jury  in  his  charge.  We  think  he  fairly  advised  the  jury  as 
to  the  law,  though  there  were  some  expressions  in  his  charge  which 
he  might  well  have  omitted,  as  they  doubtless  did  not  instruct,  and 
may  perhaps  have  to  some  extent  confused,  the  jury.  We  do  not 
think,  however,  they  were  led  into  error  or  misled  by  these  expressions, 
or  that  they  were  prejudicial.  It  is  well  for  a  judge,  charging  a  jury 
as  to  insanity,  to  avoid  as  far  as  possible  the  use  of  technical  medical 
terms  as  to  the  various  forms  and  shades  of  mental  disease. 

They  are  not  likely  to  enlighten  or  impress  the  jury,  and  are  very 
liable  to  technical  objections. 

Wc  do  not  think  there  is  any  ground  for  the  reversal  of  the  judg- 
ment, and  it  is  hereby  affirmed. 

Rehearing  refused. 

"The  Insanity  set  up  ns  a  dofonso  In  this  rasp  Is  not  hereditary  or  natural, 
but  voluntary.  In  the  smso  of  having  originated  from  the  use  of  drugs.  While 
this  is  an  unfortunate  and  unhappy  condition)  the  law  (lues  not.  ami  cannot, 
regard  it  with  the  same  leniency  thai  it  does  case-,  of  adventitious  Insanity, 
qoI  caused  by  tin-  ad  of  the  party  himself.  Parties  who  persist  in  subject- 
ing themselves  ("  the  perslstenl  use  ami  habit  of  taking  alcoholic  drink,  or 
other  poisonous  compounds  ami  drugs,  cannot  exped  dm  same  forbearance 
ami  Immunity  from  punishmenl  as  those  bereft  <>r  reason  by  the  acl  of  God. 

It    is   admissible    ami    propi  r   to   show    the    immoderate   use   of    drills    or    whis- 
ky,  not    to  eZCUBe  Crime,   DUl    to    illustrate    the    mental    condition,    Wlth*8    view 

Ing  the  degree  of  h rime  as  it  depends  upon  deliberation   and  cool, 

malicious  purpose."     Wilka,  J.,  in  Wilcos  v.  state.  !>i  Tenn.  122,  28  S.  \V.  oil' 
(1894).    But  see  Cannon  v.  State,  n  Tex.  Cr.  it.  -iut,  w  s.  \v.  o5i  (.luuu). 


M-c/yo  Vw 


Sec.  5)  INTOXICATION.  1S1 

WHITTEN  v.  STATE. 

(Supreme  Court  of  Alabama,  1S96.     115  Ala.  72,  22  South.  483.) 

Coleman,  J.  The  defendant  was  indicted  and  convicted  for  an  as- 
sault with  intent  forcibly  to  ravish.  There  was  evidence  introduced 
on  the  trial  to  show  that  at  the  time  of  the  misconduct  of  the  defend- 
ant he  was  sober,  and  there  was  evidence  tending  to  show  that  he  was 
drunk.  On  this  phase  of  the  evidence  the  defendant  requested  the 
court  to  give  the  following  charge :  "The  presumption  in  this  case 
is  that  the  defendant  is  innocent,  until  the  state  has  proven  beyond  all 
reasonable  doubt  that  he  is  guilty;  and  if  the  jury  have  a  reasonable 
doubt,  growing  out  of  all  the  evidence,  as  to  whether  he  was  sufficient- 
ly sober  to  form  the  specific  intent  to  ravish,  then  the  jury  cannot  find 
the  defendant  guilty  of  an  assault  with  intent  to  ravish."  This  charge 
was  refused.  We  are  of  opinion  the  charge  should  have  been  given. 
In  order  to  convict  under  the  statute  for  an  assault  with  intent  to 
ravish,  it  is  necessary  to  satisfy  the  jury  beyond  a  reasonable  doubt 
that  the  defendant  entertained  the  specific  intent  charged  and  made  the 
assault  to  accomplish  the  specific  purpose.  Mere  drunkenness  does 
not  excuse  or  palliate  an  offense,  but  it  may  produce  a  state  of  mind 
which  incapacitates  the  party  from  forming  or  entertaining  a  specific 
intent.  If  the  mental  condition  is  such  that  a  specific  intent  cannot 
be  formed,  whether  this  condition  is  caused  by  drunkenness  or  other- 
wise, a  party  cannot  be  said  to  have  committed  an  offense  a  necessary 
element  of  which  is  that  it  be  done  with  a  specific  intent.1 

The  condition  of  the  defendant's  mind  arising  from  his  voluntary 
drunkenness  was  no  excuse  for  the  assault,  an  offense  included  in 
that  charged.  It  can  only  be  considered  upon  the  question  of  his  guilt 
of  the  statutory  offense  for  which  he  was  indicted,  to  wit,  an  assault 
with  intent  to  forcibly  ravish,  which  involves  the  condition  of  the  de- 
fendant's mind.     Engelhardt  v.  State,  88  Ala.  100,  7  South.  154. 

Reversed  and  remanded.2 

i  Part  of  the  opinion  Is  omitted. 
Accord:  Assault  with  intent  to  murder,  Crosbv  v.  People,  137  111.  325, 
27  N.  E.  49  (1891) ;  attempt.  Reagan  v.  State.  28  Tex.  App.  227,  12  S.  W. 
601,  19  Am.  St.  Rep.  833  (1889);  bribery.  White  v.  State.  103  Ala.  72,  16 
South.  63  (1893) ;  burglary,  State  v.  Bell,  29  Iowa,  316  (1870) ;  Schwabacher 
v.  People,  165  111.  618,  46  N.  E.  809  (1S97) :  conspiracy,  Booher  v.  State,  156 
Ind.  435,  60  N.  E.  156,  54  L.  R.  A.  391  (1901) ;  forgery,  People  v.  Blake.  65 
Cal.  275,  4  Pac.  1  (1884) ;  larceny,  Wood  v.  State,  34  Ark.  341,  36  Am.  Rep. 
13  (1S79) ;   Chatham  v.  State,  92  Ala.  47,  9  South.  607  (1S90). 

2  "It  appeared  from  the  evidence  that  the  defendant  was  addicted  to  the 
habitual  and  excessive  use  of  opium  in  some  of  its  forms,  and  there  was 
evidence  from  which  it  might  be  inferred  that  at  the  time  of  the  supposed 
larceny  he  had  been  deprived  of  his  accustomed  supply  of  the  drug.  He  sought 
to  prove  by  competent  testimony  what  effect  such  deprivation  would  have  upon 
his  mental  condition,  but  the  evidence  was  rejected.  We  think  the  evidence 
was  competent,  as  tending  to  show  whether  or  not  he  was,  at  the  time,  in 
a  condition  mentally  such  as  to  be  able  to  commit  a  larceny.  The  judgment 
is  reversed."    Worden,  J.,  in  Rogers  v.  State,  33  Ind.  545  (1870). 


182 


INTENT   AS   AFFECTED   BY   CONDITIONS. 


(Ch.  5 


SECTION  6.— INCORPORATION. 


tit*1 


ANONYMOUS. 

(King's  Bench,  1702.     12  Mod.  559.) 

Note. — Per  Holt,  Chief  Justice.     A  corporation  is  not  indictable, 
but  the  particular  members  of  it  are. 


UNITED  STATES  v.  JOHN  KELSO  COMPANY. 

(United  States  District  Court  for  California,  1898.    86  Fed.  304.) 

De  Haven,  District  Judge.  On  October  9,  1897,  there  was  filed 
in  this  court  by  the  United  States  district  attorney  for  this  district 
an  information  charging  the  defendant,  a  corporation,  with  the  vio- 
lation of  "An  act  relating  to  the  limitation  of  the  hours  of  daily 
service  of  laborers  and  mechanics  employed  upon  the  public  works 
of  the  United  States  and  of  the  District  of  Columbia,"  approved 
August  1,  1892  (27  Stat.  340,  c.  352  [U.  S.  Comp.  St.  1901,  p.  2521]  ; 
2  Supp.  Rev.  St.  p.  62).  Upon  the  filing  of  this  information,  the  court, 
upon  motion  of  the  district  attorney,  directed  that  a  summons  in 
the  general  form  prescribed  by  section  1390  of  the  Penal  Code  of 
this  state,  be  served  upon  said  corporation,  and  accordingly  on  said 
date  a  summons  was  issued,  directing  the  defendant  to  appear  before 
the  judge  of  said  court  in  the  courtroom  of  the  United  States  Dis- 
trict Court  for  this  district  on  the  21st  day  of  October,  1897,  to  arr 
swer  the  charge  contained  in  the  information.  The  summons  stated 
generally  the  nature  of  the  charge,  and  for  a  more  complete  state- 
ment of  such  offense  referred  to  the  information  on  file.  On  the  day 
named  in  said  summons  for  its  appearance,  the  defendant  corporation 
appeared  specially  by  its  attorney,  and  moved  to  quash  the  summons, 
and  to  set  aside  the  service  thereof,  upon  grounds  hereinafter  stated. 
Upon  the  argument  of  this  motion  it  was  claimed  in  behalf  of  the 
defendant:  First,  that  the  act  of  Congress  above  referred  to  does 
not  apply  to  corporations,  because  the  intention  is  a  necessary  ele- 
ment of  the  crime  therein  defined,  and  a  corporation  as  such  is  in- 
capable of  entertaining  a  criminal  intention;  second,  that,  conceding 
thai  a  corporation  may  be  guilty  of  a  violation  of  said  act,  Congress 
rovided  no  mode  for  obtaining  jurisdiction  of  a  corporation  in 
a  criminal  proceeding,  and  for  thai  reason  the  summons  issued  by 
unauthorized  by  law,  and  its  service  a  nullity.  It  wil! 
be  seen  thai  the  first  objection  goes  directly  to  the  sufficiency  of  the 
information,  and  presents  precisely  the  same  question  as  would  a 
general   demurrer,  attacking  the  information   on  the  ground   of  an 


Sec.  6)  INCORPORATION.  183 

alleged  failure  to  charge  the  defendant  with  the  commission  of  a 
public  offense.  This  objection  is  one  which  would  not  ordinarily  be 
considered  upon  a  motion  like  that  now  before  the  court,  when  the 
party  making-  the  objection  refuses  to  acknowledge  the  jurisdiction 
of  the  court,  or  to  make  any  other  than  a  special  appearance  for  the 
purpose  of  attacking  its  jurisdiction;  but,  in  view  of  the  conclusion 
which  I  have  reached  upon  the  second  point  urged  by  the  defendant, 
it  becomes  necessary  for  me  to  determine  whether  the  act  of  Congress 
above  referred  to  is  applicable  to  a  corporation,  and  whether  a  cor- 
poration can  be  guilty  of  the  crime  of  violating  the  provisions  of 
said  act.  Section  1  of  that  act  makes  it  unlawful  for  a  contractor  or 
subcontractor  upon  any  of  the  public  works  of  the  United  States, 
whose  duty  it  shall  be  to  employ,  direct,  or  control  the  services  of 
laborers  or  mechanics  upon  such  public  works,  "to  require  or  permit 
any  such  laborer  or  mechanic  to  work  more  than  eight  hours  in  any 
calendar  day  except  in  case  of  extraordinary  emergency."  And 
section  2  of  the  act  provides  "that  *  *  *  any  contractor  whose 
duty  it  shall  be  to  employ,  direct,  or  control  any  laborer  or  mechanic 
employed  upon  any  public  works  of  the  United  States  *  *  *  who 
shall  intentionally  violate  any  provision  of  this  act,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  for  each  and  every  offense  shall  upon 
conviction  be  punished  by  a  fine  not  to  exceed  one  thousand  dollars 
or  by  imprisonment  for  not  more  than  six  months,  or  by  both  such 
fine  and  imprisonment,  in  the  discretion  of  the  court  having  juris- 
diction thereof."  It  will  be  observed  that  by  the  express  language 
of  this  statute  there  must  be  an  intentional  violation  of  its  provisions, 
in  order  to  constitute  the  offense  which  the  statute  defines.  In  view 
of  this  express  declaration,  it  is  claimed  in  behalf  of  defendant  that 
the  act  is  not  applicable  to  corporations,  because  it  is  not  possible  for 
a  corporation  to  commit  the  crime  described  in  the  statute.  The 
argument  advanced  to  sustain  this  position  is,  in  substance,  this  ■ 
That  a  corporation  is  only  an  artificial  creation,  without  animate 
body  or  mind,  and  therefore,  from  its  very  nature,  incapable  of  en- 
tertaining the  specific  intention  which,  by  the  statute,  is  made  an 
essential  element  of  the  crime  therein  defined.  The  case  of  State  v. 
Manufacturing  Co.,  20  Me.  41,  37  Am.  Dec.  38,  supports  the  proposi- 
tion that  a  corporation  is  not  amenable  to  prosecution  for  a  positive 
act  of  misfeasance,  involving  a  specific  intention  to  do  an  unlawful 
act,  and  it  must  be  conceded  there  are  to  be  found  dicta  in  many 
other  cases  to  the  same  effect.  In  a  general  sense,  it  may  be  said 
that  no  crime  can  be  committed  without  a  joint  operation  of  act  and 
intention.  In  many  crimes,  however,  the  only  intention  required  is 
an  intention  to  do  the  prohibited  act — that  is  to  say,  the  crime  is 
complete  when  the  prohibited  act  has  been  intentionally  done;  and 
the  more  recent  and  better-considered  cases  hold  that  a  corporation 
may  be  charged  with  an  offense  which  only  involves  this  kind  of  in- 
tention, and  may  be  properly  convicted  when,  in  its  corporate  capacity 


184 


INTENT   AS   AFFECTED   BY    CONDITIONS.  (Cll. 


and  by  direction  of  those  controlling  its  corporate  action,  it  does  the 
prohibited  act.  In  such  a  case  the  intention  of  its  directors  that  the 
prohibited  act  should  be  done  is  imputed  to  the  corporation  itself. 
State  v.  Railroad  Co.,  23  N.  J.  Law,  360;  Reg.  v.  Great  North  of 
England  Ry.  Co.,  58  E.  C.  L.  315;  Commonwealth  v.  Proprietors,  2 
Gray  (Mass.)  339.  See,  also,  State  v.  Railway  Co.,  15  W.  Va.  380, 
36  Am.  Rep.  803.  That  a  corporation  may  be  liable  civilly  for  that 
class  of  torts  in  which  a  specific  malicious  intention  is  an  essential 
element  is  not  disputed  at  this  day.  Thus  an  action  for  malicious 
prosecution  will  lie  against  a  banking  corporation.  Reed  v.  Bank, 
130  Mass.  443,  39  Am.  Rep.  468 ;  Goodspeed  v.  Bank,  22  Conn.  530,  5S 
Am.  Dec.  439.  An  action  will  lie  also  against  a  corporation  for  a 
malicious  libel.  Philadelphia,  W.  &  B.  R.  Co.  v.  Quigley,  21  How. 
(U.  S.)  202,  16  L.  Ed.  73;  Maynard  v.  Insurance  Co.,  34  Cal.  4S, 
91  Am.  Dec.  672.  The  opinion  in  the  latter  case,  delivered  by  Currey, 
C.  J.,  is  an  able  exposition  of  the  law  relating  to  the  liability  of  cor- 
porations for  malicious  libel,  in  the  course  of  which  that  learned 
judge,  in  answer  to  the  contention  that  corporations  are  mere  legal 
entities,  existing  only  in  abstract  contemplation,  utterly  incapable  of 
malevolence,  and  without  power  to  will  good  or  evil,  said: 

"The  directors  are  the  chosen  representatives  of  the  corporation, 
and  constitute,  as  already  observed,  to  all  purposes  of  dealing  with 
others,  the  corporation.  What  they  do,  within  the  scope  of  the  ob- 
jects and  purposes  of  the  corporation,  the  corporation  does.  If  they 
do  any  injury  to  another,  even  though  it  necessarily  involves  in  its 
commission  a  malicious  intent,  the  corporation  must  be  deemed  by 
imputation  to  be  guilty  of  the  wrong,  and  answerable  for  it,  as  an 
individual  would  be  in  such  case." 

The  rules  of  evidence  in  relation  to  the  manner  of  proving  the  fact 
of  intention  are  necessarily  the  same  in  a  criminal  as  in  a  civil  case, 
and  the  same  evidence  which  in  a  civil  case  would  be  sufficient  to 
prove  a  specific  or  malicious  intention  upon  the  part  of  a  corporation 
defendant  would  be  sufficient  to  show  a  like  intention  upon  the  part 
of  a  corporation  charged  criminally  with  the  doing  of  an  act  pro- 
hibited by  the  law.  Of  course,  there  are  certain  crimes  of  which  a 
corporation  cannot  be  guilty;  as,  for  instance,  bigamy,  perjury,  rape, 
murder,  and  other  offenses,  which  will  readily  suggest  themselves  to 
the  mind.  Crimes  like  these  just  mentioned  can  only  be  commit  led 
by  natural  persons,  mid  statutes  in  relation  thereto  are  for  this  reason 
never  construed  as  referring  to  corporations;  but  when  a  statute 
in  general  terms  prohibits  the  doing  of  an  act  which  ran  lie  performed 
by  a  corporation,  and  does  not  expressly  exempt  corporations  from 
its  provisions,  there  is  no  reason  why  such  statute  should  be  construed 
as  not  applying  to  them,  when  the  punishmenl  provided  for  its  in- 
fraction is  one  that  can  be  inflicted  upon  a  corporation— as,  for  in- 
e,  a  line  In  the  aet  of  Congress  now  under  consideration  it  is 
made  an  offense   for  any  contractor  or  subcontractor,  whose  duty   it 


Sec.  6)  INCORPORATION.  185 

shall  be  to  employ,  direct,  or  control  any  laborer  employed  upon  any 
of  the  public  works  of  the  United  States,  to  require  or  permit  such 
laborer  to  work  more  than  eight  hours  in  any  calendar  day.  A  cor- 
poration may  be  a  contractor  or  subcontractor  in  carrying  on  public 
works  of  the  United  States,  and  as  such  it  has  the  power  or  capacity 
to  violate  the  provision  of  this  law.  Corporations  are,  therefore, 
within  the  letter,  and,  as  it  is  as  much  against  the  policy  of  the  law 
for  a  corporation  to  violate  these  provisions  as  for  a  natural  person 
so  to  do,  they  are  also  within  the  spirit,  of  this  statute;  and  no  rea- 
son is  perceived  why  a  corporation  which  does  the  prohibited  act 
should  be  exempt  from  the  punishment  prescribed  therefor.  If  the 
law  should  receive  the  construction  contended  for  by  the  defendant, 
the  result  would  be  that  a  corporation,  in  contracting  for  the  doing 
of  any  public  work,  would  be  given  a  privilege  denied  to  a  natural 
person.  Such  an  intention  should  not  be  imputed  to  Congress,  un- 
less its  language  will  admit  of  no  other  interpretation.1 
The  motion  of  the  defendant  will  be  denied.2 

1  Part  of  the  opinion  involving  another  point  is  omitted. 

2  Accord :  Nuisance,  Northern  Cent.  Ry.  Co.  v.  Commonwealth,  90  Pa.  300 
(1879) ;  contempt  of  court,  Telegram  Newspaper  Co.  v.  Commonwealth,  172 
Mass.  294,  52  N.  E.  445,  44  L.  R.  A.  159,  70  Am.  St.  Rep.  280  (1899).  Contra: 
As  to  misfeasance,  State  v.  Railroad,  23  Ind.  362  (1864). 


186  THE    CRIMINAL   ACT.  (Ch.  6 

CHAPTER  VI. 
THE  CRIMINAL  ACT. 


SECTION  1.— CONCURRENCE  OF  ACT  AND  INTENT. 


REGINA  v.  MATTHEWS. 

(Court  of  Criminal  Appeal,  1873.    12  Cox,  C  C.  489.) 

Boviix,  C.  J.1  We  have  considered  this  case,  and  have  come  to 
the  conclusion  that  the  conviction  must  be  quashed.  The  jury  have 
found  that  at  the  time  the  prisoner  found  the  heifers  he  had  reason- 
able expectation  that  the  owner  could  be  found,  and  that  he  did  not 
believe  that  they  had  been  abandoned  by  the  owner.  But  at  the 
same  time  they  have  found  that  at  the  time  of  finding-  the  heifers  the 
prisoner  did  not  intend  to  steal  them,  but  that  the  intention  to  steal 
came  on  him  subsequently  to  the  first  interview  with  Stiles.  That 
being'  so,  the  case  is  undistinguishable  from  Reg.  v.  Thurborn,  3  Cox, 
C.  C.  453,  and  the  cases  which  have  followed  that  decision.  Not 
having  any  intention  to  steal  when  he  first  found  them,  the  presump- 
tion is  that  he  took  them  for  safe  custody,  and  unless  there  was 
something  equivalent  to  a  bailment  afterwards  he  could  not  be  con- 
victed of  larceny.  On  the  whole,  we  think  there  was  not  sufficient 
to  make  this  out  to  be  a  case  of  larceny  by  a  bailee. 

Conviction  quashed. 


MILTON  v.  STATE. 

(Supromo  Court  of  Florida,  1808.    40  Fla.  251,  24  South.  60.) 

Marry,  J.2  The  following  instruction  given  by  the  court  to  the 
jury  was  excepted  to  by  defendant,  viz.:  "If  you  believe  from  all 
the  testimony  in  this  case  that  the  defendant  was  informed  that  in  a 
certain  house  an  offense  was  being  committed  against  the  ordinances 
of  the  city  of  Tampa,  and  thai  the  defendant  was  a  policeman  of 
the  city  of  Tampa  al  the  time,  then  it  was  his  duty,  and  it  was  lawful, 
if  not  resisted,  for  him  to  go  into  said  house  for  the  purpose  of  pre- 
venting, or  arresting  those  who  might  in  his  presence  be  guilty  of 


i  The  opinion  only  is  printed. 
*  Purt  of  the  opinion  Is  omitted. 


Sec.  1)  CONCURRENCE  OF  ACT  AND  INTENT.  187 

a  violation  of  the  ordinances  of  said  city;  but  if  you  believe  from 
all  the  evidence  in  this  case  that  he  went  to  that  house  in  good  faith 
as  an  officer  of  the  law  to  enforce  the  law,  and  after  he  got  in  there 
violated  the  law  himself,  then  the  law  removes  its  sanction  to  such 
entry,  and  he  becomes  a  trespasser  from  the  beginning."  This  charge 
is  not  correct,  and  we  find  no  authority  to  sustain  it.  The  circuit 
judge  must  have  failed  to  observe  the  distinction  obtaining  in  the 
civil  and  criminal  departments  of  the  law  in  the  application  of  the 
rule  sought  to  be  invoked  in  the  charge.  Mr.  Bishop  says  (1  Crim. 
Law  [8th  Ed.]  §  208) :  "In  civil  jurisprudence  we  have  the  rule 
that  when  a  man  does  a  thing  by  permission  of  law — not  by  license, 
but  by  permission  of  law — and,  after  proceeding  lawfully  part  way, 
abuses  the  liberty  the  law  had  given  him,  he  shall  be  deemed  a  tres- 
passer from  the  beginning  by  reason  of  this  subsequent  abuse.  But 
this  doctrine  does  not  prevail  in  our  criminal  jurisprudence;  for  no 
man  is  punishable  criminally  for  what  was  not  criminal  when  done, 
even  though  he  afterwards  adds  either  the  act  or  the  intent,  yet  not 
the  two  together."  The  cases  cited,  State  v.  Moore,  12  N.  H.  42, 
and  Commonwealth  v.  Tobin,  108  Mass.  426,  11  Am.  Rep.  375,  sus- 
tain the  text. 

The  judgment  is  reversed,  and  a  new  trial  awarded. 


REGINA  v.  SUTTON. 

(Court  for  Crown  Cases  Reserved,  1838.    2  Moody,  29.) 

The  prisoner  was  tried  before  Mr.  Baron  Alderson  at  the  Spring 
Assizes  for  the  county  of  Gloucester,  1838,  upon  an  indictment  which 
contained  two  counts :  First,  for  stealing  a  sheep ;  secondly,  for 
killing  the  same  with  intent  to  steal  the  carcass. 

The   jury   found  the  prisoner  guilty  upon   the  latter  count   only. 

It  appeared  that  the  prisoner  was  interrupted  by  the  prosecutor, 
who  came  into  his  field  whilst  the  prisoner  was  in  the  act  of  killing 
the  sheep.  The  sheep,  however,  had  only  been  wounded  in  the  throat  ; 
the  jugular  vein  being  cut  on  one  side  of  it,  but  not  altogether 
through.  The  animal  was  immediately  removed  by  the  prosecutor 
to  his  own  house,  and  the  wound  sewed  up ;   but  it  died  in  two  days. 

The  jury  found  the  prisoner  had  given  to  the  sheep  a  deadly  wound, 
of  which  it  died  two  days  after,  with  intent  to  steal  the  carcass. 

Upon  these  facts  the  learned  Baron  directed  them  to  find  a  verdict 
of  guilty  upon  the  second  count.     See  Clay's  Case,  R.  &  R.  387. 

In  Easter  Term,  1838,  Lord  Denman,  C.  J.,  Tindal,  C.  J.,  Lord 
Abinger,  C.  B.,  Park,  J.,  Littledale,  J.,  Parke,  B.,  Bolland,  B., 
Bosanquet,  J.,  Alderson,  B.,  Patteson,  J.,  Coleridge,  J.,  and  Colt- 
man,  J.,  considered  this  case,  and  unanimously  held  the  conviction 
right. 


183  THE    CRIMINAL   ACT.  (Ch.  & 

PINKARD  v.  STATE. 
(Supreme  Court  of  Georgia,  1SG0.    30  Ga.  757.) 

The  plaintiff  in  error  was  indicted  and  found  guilty  of  simple  lar- 
ceny. He  moved  for  a  new  trial  on  the  following  grounds:  (4)1 
Because  the  court  erred  in  refusing  to  charge  the  jury,  as  requested 
by  the  counsel  for  defendant  in  writing,  that  if  they,  the  jury,  be- 
lieve' from  the  evidence  that  Pinkard,  the  defendant,  did  agree  with 
Perry  and  Axon  to  steal  the  negro  woman  belonging  to  Brinsfield, 
yet  if  they  believe  that  Pinkard  abandoned  the  purpose,  and  went  off 
and  did  not  participate  in  the  crime,  then  the  jury  must  find  the 
defendant  not  guilty. 

Lumpkin,  J.  We  think  the  fourth  charge  should  have  been  given. 
The  law  as  well  as  the  gospel  allows  a  place  of  repentance,  and,  not- 
withstanding the  accused  may  at  one  time  have  agreed  to  engage  in 
this  crime,  yet,  if  he  afterwards  changed  his  mind  and  abandoned 
that  intention,  he  is  not  guilty;  and  there  was  proof  in  that  case  to 
warrant  a  charge  to  that  effect. 


SECTION  2.— SUFFICIENCY  OF  THE  ACT. 
I.  Solicitation. 


BACON'S  CASE. 

(King's  Bench,  16G4.     Lev.  146.) 

He  was  indicted  for  intending  to  murder  the  Master  of  the  Rolls, 
and  for  offering  £100  to  J.  S.  to  do  it;  and  saying,  That,  if  he  would 
not,  he  would  do  it  himself;  and  he  being  convicted,  it  was  moved 
that  this  intent  only  was  not  indictable:  But  the  Court  to  the  con- 
trary said :  "Anciently  the  will  was  reputed  or  taken  for  the  deed 
in  matters  of  felony,  and  tho'  it  is  not  so  now,  yet  it  is  an  offense 
and  finable ;  and  they  fined  him  1000  marks,  three  months'  imprison- 
ment, and  to  find  sureties  of  good  behavior  during  life."2 

i  Part  of  this  case  is  omitted. 

2  "in  some  rear  Books  of  the  fourteenth  century  we  find  onr  lawyers  ap- 
pealing to  a  *  *  *  dangerous  maxim,  'Voluntas  reputaibitUI  pro  facto.' 
oke,  Third  instit  5;  2  Stephen,  Hist.  Crim.  Law,  222.  This  was,  we 
believe,  due  to  the  fad  that,  owing  t<>  the  disuse  ot  appeals,  our  criminal 
law  had  become  far  too  lenient  in  cases  of  murderous  assaults  which  did  not 
cause  death.  We  •  •  ♦  believe  thai  the  adoption,  oven  for  one  limited 
purpose,  of  tills  perilous  saying  was  but  a  momentary  aberration.  Our  old 
law  started  from  the  other  extreme:  'Factum  reputabitur  pro  voluntate.'" 
2  Pollock  &.  Mankind's  Hist  Eng.  Law,  p.   it.",,  note. 


Sec.  2)  SUFFICIENCY    OF   THE    ACT.  189 

REX  v.  HIGGINS. 

(King's  Bench,  1801.     2  East,  5.) 

The  defendant  was  indicted  for  a  misdemeanor  at  the  quarter  ses- 
sions for  the  county  of  Lancaster,  and  was  convicted  on  the  second 
count  of  the  indictment,  charging,  "That  he  on,"  etc.,  "at"  etc.,  "did 
falsely,  wickedly,  and  unlawfully  solicit  and  incite  one  James  Dixon, 
a  servant  of  J.  Phillips,"  etc.,  "to  take,  embezzle,  and  steal  a  quantity 
of  twist,  of  the  value  of  three  shillings,  of  the  goods  and  chattels  of 
his  master,  J.  P.,"  etc.,  "aforesaid,  to  the  great  damage  of  the  said 
J.  P.,"  etc.,  "to  the  evil  example,"  etc.,  "and  against  the  peace,"  etc. 
After  judgment  of  the  pillory  and  two  years'  imprisonment,  a  writ 
of  error  was  brought,  and  the  following  causes  assigned  for  error: 
(1)  That  the  said  count  does  not  set  forth  any  misdemeanor  or  of- 
fense which  the  justices  of  peace  at  their  quarter  sessions  had  juris- 
diction to  determine.1 

The  case  was  twice  argued — first  in  Trinity  term  last  by  Scarlett 
for  the  defendant  and  Cross  for  the  crown,  and  now  Topping  for 
the  defendant  and  Christian  for  the  crown. 

LE  Blanc,  J.  It  is  contended  that  the  offense  charged  in  the  sec- 
ond count,  of  which  the  defendant  has  been  convicted,  is  no  misde- 
meanor, because  it  amounts  only  to  a  bare  wish  or  desire  of  the  mind 
to  do  an  illegal  act.  If  that  were  so,  I  agree  that  it  would  not  be  in- 
dictable. But  this  is  a  charge  of  an  act  done,  namely,  an  actual  solic- 
itation of  a  servant  to  rob  his  master,  and  not  merely  a  wish  or  desire 
that  he  should  do  so.  A_solicitation  or  inciting  of  another,  by  what- 
ever means  it  is  attempted,  is  an  act  done;  and  that  such  an  act  done 
with  a  criminal  intent  is  punishable  by  indictment  has  been  clearly 
established  by  the  several  cases  referred  to.  The  cases  of  R.  v.  Daniel 
and  R.  v.  Callingwood,  cited  for  the  defendant,  do  not  support  th° 
proposition  that  a  mere  solicitation  is  not  indictable.  On  the  contrary, 
Lord  Holt  says  in  the  former  case  (6  Mod.  101)  that  perhaps  an  in- 
dictment might  be  for  the  evil  act  of  persuading  another  to  steal.  That 
part  of  the  case,  however,  was  determined  upon  the  want  of  a  venue. 
And  in  R.  v.  Callingwood,  2  Ld.  Raym.  1116,  the  only  point  determin- 
ed was  that  the  first  part  of  the  charge,  which  was  for  enticing  an  ap- 
prentice to  take  and  carry  away  goods  from  his  master,  was  not  in- 
dictable, being  only  a  private  injury  for  which  an  action  on  the  case 
would  lie,  but  not  of  such  a  public  nature  as  to  maintain  an  indictment, 
and  that  the  second  part  of  the  charge  was  not  well  laid  for  want  of  a 
venue. 

Judgment  affirmed.2 

1  Part  of  this  case  is  omitted. 

2  Kenyon,  C.  J.,  and  Grose  and  Lawrence,  JJ.,  delivered  concurring  opinions. 


190  THE   CRIMINAL  ACT.  (Ch.   6 

COMMONWEALTH  v.  HUTCHINSON. 
(Superior  Court  of  Pennsylvania,  1898.    6  Pa.  Super.  Ct.  405.) 

Smith,  J.  The  defendant  was  convicted  and  sentenced  on  the 
charge  of  soliciting  one  Robert  Williams  to  burn  a  store  building.1 

It  is  contended,  on  the  part  of  the  defense,  that  solicitation  to  com- 
mit a  misdemeanor  is  not  indictable,  and  that,  as  the  indictment 
charges  only  such  solicitation,  it  sets  forth  no  criminal  offense. 

There  seems  no  question  that  solicitation  to  commit  a  felony  is  a 
misdemeanor.  Rex  v.  Higgins,  2  East,  5;  Rex  v.  Hickman,  1 
Moody,  3-i;  Reg.  v.  Quail,  4  F.  &  F.  1076;  State  v.  Avery,  7  Conn. 
266,  18  Am.  Dec.  105;  People  v.  Bush,  4  Hill  (N.  Y.)  133;  Com- 
monwealth v.  McGill  et  al.,  Add.  (Pa.)  21;  State  v.  Bowers,  35  S. 
C.  262,  14  S.  E.  488,  15  L.  R.  A.  199,  28  Am.  St.  Rep.  847.  This, 
however,  cannot  be  affirmed  of  the  broad  proposition  that  solicitation 
to  commit  a  misdemeanor  is  itself  a  misdemeanor.  On  the  contrary, 
it  seems  clear  that  with  respect  to  various  misdemeanors,  involving 
little  or  no  moral  turpitude  or  prejudice  to  society,  solicitation  to 
their  commission  is  not  in  law  an  offense.  It  is  equally  clear  that  as  to 
certain  others  it  is  an  offense.  The  cases  cited  in  Wharton's  Criminal 
Law,  §  179,  show  that  such  solicitations  are  indictable  "when  their 
^object  is  interference  with  public  justice,  as  when  a  resistance  to  the 
execution  of  a  judicial  writ  is  counseled,  or  perjury  is  advised,  or 
the  escape  of  a  prisoner  is  encouraged,  or  the  corruption  of  a  public 
officer  is  sought,  or  is  invited  by  the  officer  himself."  In  Rex  v. 
Phillips,  6  East,  464,  it  was  held  that  solicitation  to  commit  a  misde- 
meanor of  an  evil  and  vicious  nature  was  indictable.  The  authorities 
collected  in  the  notes  to  Washington  v.  Butler,  8  Wash.  194,  35  Pac. 
1093,  25  L.  R.  A.  434,  40  Am.  St.  Rep.  900,  embrace  cases  in  which 
it  was  held  indictable  to  solicit  another  to  make  a  plate  for  counter- 
feiting bills  of  exchange,  to  commit  assault  and  battery,  or  to  commit 
perjury.  There  is  also  a  class  of  cases  frequently  referred  to  in  the 
discussion  of  this  question,  but  really  without  bearing  on  it :  Solicita- 
tions accompanied  with  the  offer  of  a  bribe,  of  which  Rex  v.  Plymp- 
ton,  2  Ld.  Raymond,  1377,  and  Rex  v.  Vaughan,  4  Burr.  2491,  are 
leading  instances.  In  these  the  act  sought  was  lawful.  The  offer  of 
a  bribe  to  influence  its  performance  was  the  unlawful  feature. 

The  adjudications  by  the  highest  cuurt  of  our  own  state,  on  the 
subject  of  solicitation  to  commit  crime,  touch  it  only  at  two  points. 
They  decide  that  it  is  a  misdemeanor  to  solicit  the  commission  of 
murder,  Stabler  v.  Commonwealth,  95  Pa.  318,  40  Am.  Rep.  653; 
Commonwealth  v.  Randolph,  L46  Pa.  83,  23  Ml.  388,  28  Am.  St. 
Rep.  782;  and  thai  solicitation  to  commit  fornication  or  adultery  is 
not  indictable,  Smith  v.  Commonwealth,  54   Pa.  209,  93  Am.  Dec.  686. 

i  The  Indictment  and  part  of  the  opinion  relating  to  a  question  of  evi- 
den<  *■  are  * » 1 1 1 1 1  ted. 


Sec.  2)  SUFFICIENCY    OF   THE    ACT.  J!»l 

The  latter  case  does  not,  however,  go  to  the  length  of  declaring  that 
solicitation  to  commit  a  misdemeanor  is  not  a  misdemeanor.  No  gen- 
eral rule  on  the  subject  was  there  laid  down.  The  decision  was  bas- 
ed on  the  difficulty  of  defining  the  particular  offense  charged  in  the 
case,  of  determining  "what  expressions  of  the  face  or  double  enten- 
dres  of  the  tongue,  what  freedom  of  manners,  are  to  be  adjudged 
solicitation,"  and  on  the  principle  that  "a  rule  of  law  which  should 
make  mere  solicitation  to  fornication  or  adultery  indictable  would  be 
an  impracticable  rule,  one  that  in  the  present  usages  and  manners  of 
society  would  lead  to  great  abuses  and  oppressions."  It  may  be  added 
that  the  act  charged  was  one  that  tended  only  to  secret  immorality  by 
the  parties  immediately  involved,  and  not  directly  to  the  public  prej- 
udice. 

In  the  broad  field  lying  between  the  extremes  thus  adjudicated,  our 
guide  must  be  found  in  the  principles  that  underlie  our  Criminal  Code. 
To  reach  just  conclusions,  we  must  pursue  the  method  thus  laid  down 
by  Mr.  Justice  Paxson  in  Commonwealth  v.  McHale,  97  Pa.  397,  39 
Am.  Rep.  808,  and  applied  in  that  case:  "We  must  look  beyond  the 
cases  and  examine  the  principles  upon  which  common-law  offenses 
rest.  It  is  not  so  much  a  question  whether  such  offenses  have  been 
punished  as  whether  they  might  have  been.  *  *  *  We  are  of 
opinion  that  all  such  crimes  as  especially  affect  public  society  are  in- 
dictable at  common  law.  The  test  is,  not  whether  precedents  can  be 
found  in  the  books,  but  whether  they  injuriously  affect  the  public 
police  and  economy." 

The  distinction,  sometimes  attempted,  between  solicitation  to  com- 
mit a  felony  and  to  commit  a  misdemeanor,  is  based  on  an  artificial, 
and  not  an  intrinsic  difference.  It  has  received  comparatively  slight 
judicial  recognition.  In  Reg.  v.  Ransford,  13  Cox,  C.  C.  9,  it  was  de- 
clared to  be  without  foundation.  Indeed,  the  statutory  classification 
of  crime  as  felony  or  misdemeanor  is  governed  by  no  fixed  or  definite 
principle,  but  is  purely  arbitrary.  Legislative  whim  or  caprice  may 
alone  determine  in  which  category  an  offense,  not  a  felony  at  com- 
mon law,  shall  be  placed.  There  is  no  reason,  arising  from  the  nature 
of  the  offenses,  why  the  burning  of  another's  house  shall  be  classed  as 
a  felony,  and  the  burning  of  one's  own  house  or  other  building  with  in- 
tent to  defraud  insurers,  as  a  misdemeanor ;  why  the  larceny  of  money 
shall  be  pronounced  a  felony,  and  its  embezzlement  only  a  misdemean- 
or; why  it  shall  be  deemed  a  felony  to  make  counterfeit  coin,  and  but 
a  misdemeanor  to  utter  it,  or  a  felony  to  attempt  to  utter  a  counterfeit 
bank  note,  and  only  a  misdemeanor  to  utter  counterfeit  coin ;  why  the 
possession  of  ten  counterfeit  bank  notes,  with  intent  to  utter  them, 
shall  be  declared  a  felony,  and  the  forgery  of  a  deed  merely  a  mis- 
demeanor; or  why  the  forgery  of  a  bank  check  shall  be  made  a 
felony,  and  the  forgery  of  a  promissory  note  but  a  misdemeanor. 
With  respect  to  the  public  police  and  economy,  and  the  general  inter- 
ests of  society,  there  are  misdemeanors  more  pernicious  in  effect  than 


192  THE   CRIMINAL  ACT.  (Cll.   6 

some  of  the  felonies.  As  to  the  mode  and  incidents  of  trial  there  is  no 
distinction,  except  as  between  offenses  triable  exclusively  in  the  oyer 
and  terminer  and  those  within  the  jurisdiction  of  the  quarter  ses- 
sions. As  to  punishment,  trial  for  misdemeanor  may  subject  the  de- 
fendant to  punitive  consequences  more  serious  than  those  to  which 
he  is  exposed  in  trial  for  many  of  the  felonies,  since  the  penalty  is 
often  more  severe,  and,  even  if  acquitted,  the  costs  may  be  imposed 
upon  him.  It  is  obvious  that,  with  respect  to  the  majority  of  criminal 
offenses,  the  distinction  between  felonies  and  misdemeanors  rests  on 
no  substantial  basis,  and  that  the  classification  of  an  offense  as  a 
felony  or  a  misdemeanor  affords  no  just  criterion  for  determining 
whether  solicitation  to  its  commission  is  indictable.  Under  such  a 
test,  one  may  be  punished  for  soliciting  the  theft  of  the  most  trifling 
chattel,  or  the  burning  of  the  most  worthless  dwelling,  yet  may  with 
impunity  incite  to  the  embezzlement  of  millions,  or  to  the  laying  in 
ashes  of  the  largest  manufactories,  or  the  entire  business  quarter  of 
a  city.  The  only  practical  and  reasonable  test  is  that  stated  and  ap- 
lied  in  Commonwealth  v.  McHale,  supra — the  manner  in  which  the 
act  may  "affect  the  public  police  and  economy" ;  and  the  only  logical 
conclusion  is  that  all  acts  which  "especially  affect  public  society,"  to 
its  injury,  are  criminal.  The  act  for  which  the  defendant  is  here  in- 
dicted, as  thus  affecting  public  society,  is  the  solicitation  described 
in  the  indictment. 

Argument  is  scarcely  needed  to  demonstrate  that  the  solicitation 
charged  in  the  present  case  is  of  a  character  to  injuriously  affect  pub- 
lic society  and  the  public  police  and  economy.  Except  solicitations 
to  murder  and  riot,  nothing  is  more  calculated  to  disorder  and  ter- 
rorize society  than  incitements  to  incendiarism.  Such  incitement  is  a 
direct  blow  at  security  of  property,  and  even  of  life.  It  must  there- 
fore be  pronounced  an  indictable  offense. 

The  judgment  of  the  court  below  is  affirmed.2 


II.  Attempt. 

PEOPLE  v.  MURRAY. 
(Supreme  Court  of  California,  1889.    14  Gal.  ino.) 

Field,  C.  J.,  delivered  the  opinion  of  the  court — Cope,  J.,  and 
Baldwin,  J.,  c<  incurring.11 

The  evidence  in  this  case  entirely  fails  to  sustain  the  charge  against 
the  defendant  of  an  attempt  to  contract  an  incestuous  marriage  with 
his  nie  e.  It  only  di  clo  es  declarations  <>f  his  determination  to  con- 
tract the  marriage,  his  elopement  with  the  niece  for  that  avowed  pur- 

Commonwealtn  v.  Wlllard,  22  Plclu  (Mass.)  470  (1839). 
s  The  opinion  <>niy  la  printed 


Sec.  2)  SUFFICIENCY   OF  THE   ACT.  193 

pose,  and  his  request  to  one  of  the  witnesses  to  go  for  a  magistrate 
to  perform  the  ceremony.  It  shows  very  clearly  the  intention  of 
the  defendant,  but  something  more  than  mere  intention  is  necessary 
to  constitute  the  offense  charged.  Between  preparation  for  the  at- 
tempt and  the  attempt  itself  there  is  a  wide  difference.  The  preparation 
consists  in  devising  or  arranging  the  means  or  measures  necessary  for 
the  commission  of  the  offense.  The  attempt  is  the  direct  movement  to- 
ward the  commission  after  the  preparations  are  made.  To  illustrate :  A 
party  may  purchase  and  load  a  gun,  with  the  declared  intention  to 
shoot  his  neighbor;  but  until  some  movement  is  made  to  use  the 
weapon  upon  the  person  of  his  intended  victim  there  is  only  prepara- 
tion, and  not  an  attempt.  For  the  preparation,  he  may  be  held  to 
keep  the  peace;  but  he  is  not  chargeable  with  any  attempt  to  kill. 
So,  in  the  present  case,  the  declarations,  and  elopement,  and  request 
for  a  magistrate  were  prepaiatory  to  the  marriage;  but  until  the 
officer  was  engaged,  and  the  parties  stood  before  him,  ready  to  take 
the  vows  appropriate  to  the  contract  of  marriage,  it  cannot  be  said 
in  strictness,  that  the  attempt  was  made.  The  attempt  contemplated 
by  the  statute  must  be  manifested  by  acts  which  would  end  in  the 
consummation  of  the  particular  offense,  but  for  the  intervention  of 
circumstances  independent  of  the  will  of  the  party. 
Judgment  reversed,  and  cause  remanded. 


STATE  v.  HURLEY. 

(Supreme  Court  of  Vermont,  3906.     79  Vt.  28,  64  Atl.  78,  6  L.  R.  A.  [N.  S.] 
804,  118  Am.  St.  Rep.  934.) 

Munson,  J.,  delivered  the  opinion  of  the  court. 

The  respondent  is  informed  against  for  attempting  to  break  open 
the  jail  in  which  he  was  confined,  by  procuring  to  be  delivered  into 
his  hands  12  steel  hack  saws,  with  an  intent  to  break  open  the  jail 
therewith.  The  state's  evidence  tended  to  show  that,  in  pursuance 
of  an  arrangement  between  the  respondent  and  one  Tracy,  a  former 
inmate,  Tracy  attempted  to  get  a  bundle  of  hack  saws  to  the  re- 
spondent by  throwing  it  to  him  as  he  sat  behind  the  bars  at  an  open 
window,  and  that  the  respondent  reached  through  the  bars  and  got 
the  bundle  into  his  hands,  but  was  ordered  at  that  moment  by  the 
jailer  to  drop  it,  and  did  so.  The  court  charged,  in  substance,  that 
if  the  respondent  arranged  for  procuring  the  saws,  and  got  them  into 
his  possession  with  an  intent  to  break  open  the  jail  for  the  purpose 
of  escaping,  he  was  guilty  of  the  offense  alleged.  The  respondent 
demurred  to  the  information,  and  excepted  to  the  charge.  Bishop 
defines  a  criminal  attempt  to  be  "an  intent  to  do  a  particular  criminal 
thing,  with  an  act  toward  it  falling  short  of  the  thing  intended."  2 
Crim.  Law,  §  728.  The  main  difficulty  in  applying  this  definition  |j 
Mik.Cr.L.— 13 


194  THE   CRIMINAL  ACT.  (Ch.   6 

lies  in  determining  the  relation  which  the  act  done  must  sustain  to 
the  completed  offense.  That  relation  is  more  fully  indicated  in  the 
following  definition  given  by  Stephen :  "An  attempt  to  commit  a 
crime  is  an  act  done  with  intent  to  commit  that  crime,  and  forming 
a  part  of  a  series  of  acts  which  would  constitute  its  actual  commission 
if  it  were  not  interrupted."  Dig.  Crim.  Law,  33.  All  acts  done  in 
preparation  are,  in  a  sense,  acts  done  towards  the  accomplishment 
of  the  thing  contemplated.  But  most  authorities  certainly  hold,  and 
many  of  them  state  specifically,  that  the  act  must  be  something  more 
than  mere  preparation.  Acts  of  preparation,  however,  may  have 
such  proximity  to  the  place  where  the  intended  crime  is  to  be  com- 
mitted, and  such  connection  with  a  purpose  of  present  accomplish- 
ment, that  they  will  amount  to  an  attempt.  See  note  to  People  v. 
Moran  (N.  Y.)  20  Am.  St.  Rep.  741;  People  v.  Stites,  75  Cal.  570, 
17  Pac.  693;    People  v.  Lawton,  56  Barb.   (N.  Y.)   126. 

Various  rules  have  been  formulated  in  elucidating  this  subject. 
Some  acts  toward  the  commission  of  the  crime  are  too  remote  for 
the  law  to  notice.  The  act  need  not  be  the  one  next  preceding  that 
needed  to  complete  the  crime.  Preparations  made  at  a  distance  from 
the  place  where  the  offense  is  to  be  committed  are  ordinarily  too 
remote  to  satisfy  the  requirement.  1  Bishop,  Crim.  Law,  §§  759, 
762  (4),  763.  The  preparation  must  be  such  as  would  be  likely  to 
end,  if  not  extraneously  interrupted,  in  the  consummation  of  the 
crime  intended.  3  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  266,  note  7. 
The  act  must  be  of  such  a  character  as  to  advance  the  conduct  of  the 
actor  beyond  the  sphere  of  mere  intent.  It  must  reach  far  enough 
towards  the  accomplishment  of  the  desired  result  to  amount  to  the 
commencement  of  the  consummation.  Hicks  v.  Commonwealth,  86 
Va.  223,  9  S.  E.  1024,  19  Am.  St.  Rep.  891.  But  after  all  that  has 
been  said  the  application  is  difficult.  One  of  the  best  known  cases 
where  acts  of  preparation  were  held  insufficient  is  People  v.  Murray, 
11  Cal.  159,  which  was  an  indictment  for  an  attempt  to  contract  an 
incestuous  marriage.  There  the  defendant  had  eloped  with  his  niece 
with  the  avowed  purpose  of  marrying  her,  and  had  taken  measures 
to  procure  the  attendance  of  a  magistrate  to  perform  the  ceremony. 
In  disposing  of  the  case,  Judge  Field  said :  "Between  preparations 
for  the  attempl  and  the  attempt  itself  there  is  a  wide  difference.  The 
preparation  consists  in  devising  <>r  arranging  the  means  or  measures 
necessary  for  the  commission  of  the  offense.  The  attempt  is  the 
I  movement  toward  the  commission  after  the  preparations  are 
made."  .Mr.  I'i  hop  thinks  this  case  is  near  the  dividing  line,  and 
doubts  if  it  will  he  followed  by  all  courts.  1  Crim.  Law.  §  763  (3). 
Mr.  Wharton  considers  the  holding  an  undue  extension  of  the  doc- 
trine that  preliminary  preparations  are  insufficient.  Crim.  Law,  181, 
note.  Hut  the  case  ha  been  cited  with  approval  by  courts  of  high 
standing.  The  exact  inquiry  presented  by  the  case  before  us  is  wheth- 
er the  procurement  of  ili«-  means  of  committing  the  offense  is  to  be 


Sec.  2)  SUFFICIENCY   OF   THE   ACT.  195 

treated  as  a  preparation  for  the  attempt,  or  as  the  attempt  itself. 
In  considering  this  question,  it  must  be  remembered  that  there  are 
some  acts,  preparatory  in  their  character,  which  the  law  treats  as 
substantive  offenses;  for  instance,  the  procuring  of  tools  for  the  pur- 
pose of  counterfeiting,  and  of  indecent  prints  with  intent  to  publish 
them.  Comments  upon  cases  of  this  character  may  lead  to  confusion, 
if  not  correctly  apprehended.    Wharton,  Crim.  Law,  §  180,  and  note  1. 

The  case  of  Griffin  v.  State,  26  Ga.  493,  cited  by  the  respondent,  ^ 
cannot  be  accepted  as  an  authority  in  his  favor.  There  the  defend- 
ant was  charged  with  attempting  to  break  into  a  storehouse  with 
intent  to  steal,  by  procuring  an  impression  of  the  key  to  the  lock 
and  preparing  from  this  impression  a  false  key  to  fit  the  lock.  The 
section  of  the  Penal  Code  upon  which  the  indictment  was  based 
provides  for  the  indictment  of  any  one  who  "shall  attempt  to  commit 
an  offense  prohibited  by  law,  and  in  such  an  attempt  shall  do  any 
act  toward  the  commission  of  such  offense."  The  court  considered 
that  the  General  Assembly  used  the  word  "attempt"  as  synonymous 
with  "intend,"  and  that  the  object  of  the  enactment  was  to  punish 
"intents,"  if  demonstrated  by  an  act.  The  court  cited  Rex  v.  Sutton; 
2  Strange,  1074,  as  a  strong  authority  in  support  of  the  indictment. 
There  the  prisoner  was  convicted  for  having  in  his  possession  iron 
stamps,  with  intent  to  impress  the  scepter  on  sixpences.  This  was 
not  an  indictment  for  any  attempt,  but  for  the  offense  of  possessing 
tools  for  counterfeiting  with  intent  to  use  them.  The  Georgia  court, 
by  its  construction  of  the  statute,  relieved  itself  from  the  distinction 
between  "attempts"  and  crimes  of  procuring  or  possessing  with  un- 
lawful intent. 

The  act  in  question  here  is  the  procuring  by  a  prisoner  of  tools 
adapted  to  jail-breaking.  That  act  stands  entirely  unconnected  with 
any  further  act  looking  to  their  use.  It  is  true  that  the  respondent 
procured  them  with  the  design  of  breaking  jail.  But  he  had  not 
put  that  design  into  execution,  and  might  never  have  done  so.  He 
had  procured  the  means  of  making  the  attempt,  but  the  attempt  it- 
self was  still  in  abeyance.  Its  inauguration  depended  upon  the  choice 
of  an  occasion  and  a  further  resolve.  That  stage  was  never  reached, 
and  the  procuring  of  the  tools  remained  an  isolated  act.  To  con- 
stitute an  attempt,  a  preparatory  act  of  this  nature  must  be  connected 
with  the  accomplishment  of  the  intended  crime  by  something  more 
than  a  general  design. 

Exceptions  sustained,  judgment  and  verdict  set  aside,  demurrer 
sustained,  information  held  insufficient  and  quashed,  and  respondent 
discharged. 


106  THE   CRIMINAL  ACT.  (Cll     6 

CLARK  v.  STATE. 
(Supreme  Court  of  Tennessee,  1SSS.     8G  Tenn.  511,  8  S.  W.  145.) 

Folkes,  J.  This  is  an  indictment  for  attempt  to  commit  a  larceny. 
There  was  a  conviction  and  sentence  of  one  year  in  the  penitentiary. 
Motion  for  new  trial  and  in  arrest  of  judgment  being  made  and  over- 
ruled, the  defendant  has  appealed  in  error.1 

The  next  error  assigned  is  to  the  charge  of  the  court  in  this:  "If 
his  purpose  was  to  steal  when  he  opened  the  drawer,  and  his  opening 
it  was  a  part  of  the  act  designed  by  him  for  getting  possession  of  the 
prosecutor's  money,  he  would  be  guilty  of  an  attempt  to  commit  lar- 
ceny, even  though  at  that  particular  time  there  was  no  money  in  the 
cash  drawer." 

The  proof  shows  that  the  defendant  was  detected  by  the  prosecu- 
tor in  the  act  of  opening  the  cash  drawer  of  the  latter's  store,  having 
thrown  himself  across  the  counter  for  that  purpose,  he  being  alone  in 
the  front  part  of  the  store  at  the  time;  the  prosecutor  being  in  the 
rear  waiting  on  a  customer,  and  being  hidden  from  defendant's  view 
by  a  screen.  When  thus  detected,  and  hallooed  at  by  the  prosecutor, 
the  defendant  hurriedly  left  the  store. 

The  proof  leaves  it  in  doubt  whether  or  not  there  was  any  money 

^in  this  particular  drawer  at  the  time  the  attempt  was  made.  It  was 
early  in  the  morning,  and  the  drawer  had  been  emptied  the  evening 
before. 

The  court  had  stated  to  the  jury  that  the  state  claimed  that  there 
was  money  in  the  drawer  at  the  time  of  the  alleged  attempt,  and  that 
this  was  denied  by  the  defendant,  and  that  this  was  one  of  the  ques- 
tions of  fact  that  they  must  determine,  and  that  they  must  determine 
from  the  proof  what  was  the  purpose  and  intention  of  the  prisoner 
in  opening  the  cash  drawer;  and  if  they  found  that  the  defendant  be- 
lieved there  was  money  or  other  valuables  in  said  drawer,  and  his 
i>urpose  in  opening  the  same  was  to  steal  its  contents,  then  he  would 
be  guilty  of  an  attempt  to  commit  larceny,  whether  there  was  money 
or  other  valuables  in  the  drawer  at  the  time  or  not. 

There  is  no  error  in  this  record.  The  act  averred  and  proven  is 
sufficient. 

The  direct  question  here  presented  lias  never  been  passed  upon  by 
thi-  court,  lint  it  is  by  no  means  one  without  authority.  It  has  re- 
ceived much  discussion  in  the  text-books  and  in  the  adjudged  eases 
from  other  courts. 

are  conflicting.  In  Reg.  v.  Collins,  Leigh  & 
C.  471,  it  was  held  there  could  be  no  attempt  to  pick  the  pocket  of  a 
person  who  had  no  money  al  the  time  in  her  pocket;  while  in  Reg. 
v.  Goodhall,  1   Den.  C.  C.  187,  it  was  held  an  attempt  to  produce  a 

»  Part  of  the  opinion  is  omitted 


Sec.  2)  SUFFICIENCY    OF   THE   ACT.  197 

miscarriage  could  be  committed  on  a  woman  supposed  to  be,  but  not 
in  fact,  pregnant. 

It  appears  to  us  that  these  cases  cannot  be  reconciled,  although  Mr. 
Heard,  in  his  second  edition  of  Leading  Criminal  Cases  (volume 
2,  pp.  482,  483),  has  attempted  to  do  so.  We  are  constrained  to  agree 
with  Mr.  Bishop  that  "these  differing  opinions  must  have  sprung 
from  opposite  views  in  the  two  benches  of  judges."  See  Bishop's 
Cr.  Law  (7th  Ed.)  §  741,  note  1. 

The  American  cases  seem  to  be  uniform,  or  at  least  substantially 
so,  for  here  the  few  conflicts  are  more  apparent  than  real. 

In  Rogers  v.  Commonwealth,  5  Serg.  &  R.  463,  the  Pennsylvania 
court  held  that  an  indictment  for  assault  with  intent  to  steal  from  the 
pocket  is  good,  though  it  contains  no  setting  out  of  anything  in  the 
pocket  to  be  stolen.  Duncan,  J.,  in  delivering  the  opinion  of  the 
court,  said :  "The  intention  of  the  person  was  to  pick  the  pocket  of 
whatever  he  found  in  it ;  and,  although  there  might  be  nothing  in  the 
pocket,  the  intention  to  steal  is  the  same." 

So  in  Massachusetts,  under  a  statute  differing  in  terms  but  the 
same  in  substance  as  our  own  hereinabove  quoted,  it  was  held  that  the 
indictment  need  not  allege,  and  the  prosecutor  need  not  prove,  that 
there  was  in  the  pocket  anything  which  could  be  the  subject  of  lar- 
ceny. Commonwealth  v.  McDonald,  5  Cush.  365.  See,  also,  Com- 
monwealth v.  Jacobs,  9  Allen,  274. 

To  the  same  effect  is  State  v.  Wilson,  30  Conn.  500. 

So  in  Indiana  it  has  been  held  that  an  assault  on  one  with  intent  to 
rob  him  of  his  money  may  be  committed,  though  he  has  no  money  in 
possession  at  the  time.  Hamilton  v.  State,  36  Ind.  280,  10  Am.  Rep. 
22. 

If  an  indictment  for  an  intent  to  steal  the  contents  of  a  trunk  or 
room  would  not  be  good,  where  it  transpired  that  there  was  nothing 
in  the  trunk  or  room,  then  it  would  seem  to  follow  that  the  indictment, 
in  case  where  there  were  goods  in  the  trunk  or  room,  would  have  to 
allege  what  particular  goods  the  thief  purposed  to  steal ;  and,  if  nec- 
essary to  allege,  it  is  necessary  to  prove,  and  how  could  this  be  proven 
where  there  was  a  variety  of  different  goods,  and  the  thief  was  ar- 
rested before  he  had  laid  hands  upon  any  article  ? 

Again,  if  a  thief  is  caught  with  his  hand  in  your  pocket  before  he 
can  grasp  any  of  its  contents,  and  it  is  found  that  the  pocket  contains 
both  money  and  a  watch,  how  can  it  be  proven  that  he  intended  to 
steal  both,  and,  if  not  both,  which? 

And  in  the  case  last  put,  is  there  any  more  of  an  attempt  to  steal, 
the  thief  being  ignorant  of  the  presence  of  the  watch  or  money,  than 
there  would  had  he,  with  similar  intent  and  ignorance,  placed  his  hand 
in  an  empty  pocket? 

In  each  case  there  is  the  substantive  and  distinct  offense  as  pre- 
scribed by  the  statute.  There  is  the  criminal  intent,  and  an  effort 
made  to  carry  out  the  intent  to  the  point  of  completion,  interrupted 


198  THE   CRIMINAL   ACT.  (Cll.   6 

by  some  unforeseen  inpediment  or  lack  outside  of  himself,  special  to 
the  particular  case  and  not  open  to  observation,  intervening  to  pre- 
vent success  without  the  abandonment  of  effort  or  change  of  purpose 
on  the  part  of  the  accused. 

As  said  by  Air.  Bishop:  "It  being  accepted  truth  that  the  defend- 
ant deserves  punishment  by  reason  of  his  criminal  intent,  no  one  can 
seriously  doubt  that  the  protection  of  the  public  requires  the  punish- 
ment to  be  administered,  equally  whether,  in  the  unseen  depth  of  the 
pocket,  etc.,  what  was  supposed  to  exist  was  really  present  or  not."  1 
Bishop,  Cr.  Law,  §  741. 

The  community  suffers  from  the  mere  alarm  of  crime. 

Again:  "Where  the  thing  intended  (attempted)  is  a  crime,  and 
what  is  done  is  of  a  sort  to  create  alarm — in  other  words,  excite  ap- 
prehension that  the  evil  intended  will  be  carried  out — the  incipient 
act  which  the  law  of  attempt  takes  cognizance  of  is  in  reason  com- 
mitted."    1  Bishop,  Cr.  Law,  §  742. 

The  true  legal  reason  for  the  conclusion  reached  is  that  the  defend- 
ant, with  criminal  intent,  has  performed  an  act  tending  to  disturb 
the  public  repose.    Id.  §  744. 

Mr.  Wharton's  views  on  this  at  one  time  perplexing  question  are 
in  accord  with  Mr.  Bishop.  See  1  Whart.  Cr.  Law  (9th  Ed.)  §§  182, 
183,  185,  186,  and  192. 

Let  the  judgment  be  affirmed.2 


PEOPLE  v.  JAFFE. 

(Court  of  Appeals  of  New  York,  1906.     185  N.  Y.  497.  78  N.  E.  169,  9  L.  R. 

A.  [N.  S.]  263). 

Wiixard  Bartlktt,  J.8  The  indictment  charged  that  the  defendant 
on  the  6th  day  of  October,  1902,  in  the  county  of  New  York,  feloni- 
ously received  20  yards  of  cloth,  of  the  value  of  25  cents  a  yard,  be- 
longing to  the  copartnership  of  J.  W.  Goddard  &  Son,  knowing  that 
the  said  property  had  been  feloniously  stolen,  taken  and  carried  away 

2  See,  also,  State  v.  Clover.  27  S.  C.  602,  4  S.  E.  564  (1888);  Teople  v. 
Moran,   123  N.  Y.  264,  25   v  B.  412.  10  L.  R.  A.  109.  20  Am.  St.  Rep.  732 

"If  an  assaull  should  be  made  <>n  a  man  dressed  ms  a  woman,  with  Intent 

bo  ravish,  the  aseallanl  believing  the  person  assaulted  to  be  a  woman,  he  could 

not   be  convicted  or  an  attempt  to  ravish,  because  In  auch  a  case  the  com- 

on  oi   the  crime  of  rape  would  he  a  legal  Impossibility."     Follett,  J.,  in 

People  v.  Gardner,  r.\  Bun,  66,  25  N.  Y.  Supp.  1072  (1893). 

"if  I,  believing  thai  there  is  :i  person  In  an  adjoining  room,  when  in  fact 
there  is  no  one  there,  tire  e  pistol  through  the  doorway  with  tho  intention 
at  tilling  him.  i  have  committed  no  acl  cognizable  by  the  criminal  law." 
Pollock,  C  B.,  arguendo,  In  Reg.  v.  Gaylor,  Dears.  &  B  292  (1857).  Cf.  People 
..  i  , ,.  Koi  -  98  Oal.  666,  80  Pac,  800,  17  L.  R.  A.  626,  29  km.  St  Rep.  \^ 
(1892). 

•    The  opinion  only   Is   printed 


Sec.  2)  SUFFICIENCY    OF   THE   ACT.  1!)!) 

from  the  owners.  It  was  found  under  section  550  of  the  Penal  Code, 
which  provides  that  a  person  who  buys  or  receives  any  stolen  prop- 
erty knowing  the  same  to  have  been  stolen  is  guilty  of  criminally 
receiving  such  property.  The  defendant  was  convicted  of  an  attempt 
to  commit  the  crime  charged  in  the  indictment.  The  proof  clearly 
showed,  and  the  district  attorney  conceded  upon  the  trial,  that  the 
goods  which  the  defendant  attempted  to  purchase  on  October  6, 
1902,  had  lost  their  character  as  stolen  goods  at  the  time  when  they 
were  offered  to  the  defendant  and  when  he  sought  to  buy  them.  In 
fact,  the  property  had  been  restored  to  the  owners,  and  was  wholly 
within  their  control,  and  was  offered  to  the  defendant  by  their  au- 
thority and  through  their  agency.  The  question  presented  by  this 
appeal,  therefore,  is  whether,  upon  an  indictment  for  receiving  goods 
knowing  them  to  have  been  stolen,  the  defendant  may  be  convicted 
of  an  attempt  to  commit  the  crime  where  it  appears  without  dispute 
that  the  property  which  he  sought  to  receive  was  not  in  fact  stolen 
property. 

The  conviction  was  sustained  by  the  Appellate  Division  chiefly 
upon  the  authority  of  the  numerous  cases  in  which  it  has  been  held 
that  one  may  be  convicted  of  an  attempt  to  commit  a  crime  notwith- 
standing the  existence  of  facts  unknown  to  him  which  would  have 
rendered  the  complete  perpetration  of  the  crime  itself  impossible.  Not- 
ably among  these  are  what  may  be  called  the  "Pickpocket  Cases/' 
where,  in  prosecutions  for  attempts  to  commit  larceny  from  the  per- 
son by  pocket-picking,  it  is  held  not  to  be  necessary  to  allege  or 
prove  that  there  was  anything  in  the  pocket  which  could  be  the  sub- 
ject of  larceny.  Commonwealth  v.  McDonald,  5  Cush.  (Mass.)  365; 
Rogers  v.  Commonwealth,  5  Serg.  &  R.  (Pa.)  463;  State  v.  Wilson, 
30  Conn.  500;  People  v.  Moran,  123  N.  Y.  254,  25  N.  E.  412,  10 
L.  R.  A.  109,  20  Am.  St.  Rep.  732.  Much  reliance  was  also  placed 
in  the  opinion  of  the  learned  Appellate  Division  upon  the  case  of 
People  v.  Gardner,  144  N.  Y.  119,  38  N.  E.  1003,  28  L.  R.  A.  699, 
43  Am.  St.  Rep.  741,  where  a  conviction  of  an  attempt  to  commit  the 
crime  of  extortion  was  upheld,  although  the  woman  from  whom 
the  defendant  sought  to  obtain  money  by  a  threat  to  accuse  her  of 
a  crime  was  not  induced  to  pay  the  money  by  fear,  but  was  acting 
at  the  time  as  a  decoy  for  the  police,  and  hence  could  not  have  been 
subjected  to  the  influence  of  fear.  In  passing  upon  the  question  here 
presented  for  our  determination,  it  is  important  to  bear  in  mind 
precisely  what  it  was  that  the  defendant  attempted  to  do.  He  simply 
made  an  effort  to  purchase  certain  specific  pieces  of  cloth.  He  be- 
lieved the  cloth  to  be  stolen  property,  but  it  was  not  such  in  fact. 
The  purchase,  therefore,  if  it  had  been  completely  effected,  could  not 
constitute  the  crime  of  receiving  stolen  property  knowing  it  to  be 
stolen,  since  there  could  be  no  such  thing  as  knowledge  on  the  part 
of  the  defendant  of  a  nonexistent  fact,  although  there  might  be  a 
belief  on  his  part  that  the  fact  existed.     As  Mr.  Bishop  well  says,  it 


200  THE   CRIMINAL   ACT.  (Cll.   6 

is  a  mere  truism  that  there  can  be  no  receiving  of  stolen  goods  which 
have  not  been  stolen.  2  Bishop,  New  Crim.  Law,  §  1140.  It  is 
equally  difficult  to  perceive  how  there  can  be  an  attempt  to  receive 
stolen  goods,  knowing  them  to  have  been  stolen,  when  they  have  not 
been  stolen  in  fact. 

The  crucial  distinction  between  the  case  before  us  and  the  pick- 
pocket cases,  and  others  involving  the  same  principle,  lies,  not  in 
the  possibility  or  impossibility  of  the  commission  of  the  crime,  but 
in  the  fact  that  in  the  present  case  the  act  which  it  was  doubtless  the 
intent  of  the  defendant  to  commit  would  not  have  been  a  crime  if 
it  had  been  consummated.  If  he  had  actually  paid  for  the  goods 
which  he  desired  to  buy  and  received  them  into  his  possession,  he 
would  have  committed  no  offense  under  section  550  of  the  Penal 
Code,  because  the  very  definition  in  that  section  of  the  offense  of 
criminally  receiving  property  makes  it  an  essential  element  of  the 
crime  that  the  accused  shall  have  known  the  property  to  have  been 
stolen  or  wrongfully  appropriated  in  such  a  manner  as  to  constitute 
larceny.  This  knowledge  being  a  material  ingredient  of  the  offense, 
it  is  manifest  that  it  cannot  exist  unless  the  property  has  in  fact  been 
stolen  or  larcenously  appropriated.  No  man  can  know  that  to  be  so 
which  is  not  so  in  truth  and  in  fact.  He  may  believe  it  to  be  so,  but 
belief  is  not  enough  under  the  statute.  In  the  present  case  it  appeared, 
not  only  by  the  proof,  but  by  the  express  concession  of  the  prosecut- 
ing officer,  that  the  goods  which  the  defendant  intended  to  purchase 
had  lost  their  character  as  stolen  goods  at  the  time  of  the  proposed 
transaction.  Hence,  no  matter  what  was  the  motive  of  the  defendant, 
and  no  matter  what  he  supposed,  he  could  do  no  act  which  was  in- 
trinsically adapted  to  the  then  present  successful  perpetration  of  the 
crime  denounced  by  this  section  of  the  Penal  Code,  because  neither 
he  nor  any  one  in  the  world  could  know  that  the  property  was  stolen 
property,  inasmuch  as  it  was  not,  in  fact,  stolen  property.  In  the 
pickpocket  cases  the  immediate  act  which  the  defendant  had  in  con- 
templation was  an  act  which,  if  it  could  have  been  carried  out,  would 
have  been  criminal ;  whereas  in  the  present  case  the  immediate  act 
which  the  defendant  had  in  contemplation  (to  wit,  the  purchase  of 
the  goods  which  were  brought  to  his  place  for  sale)  could  not  have 
been  criminal  under  the  statute,  even  if  the  purchase  had  been  com- 
pleted, because  the  goods  had  not  in  fact  been  stolen,  but  were,  at  the 
time  when  they  were  offered  to  him,  in  the  custody  and  under  the 
control  of  the  true  owners. 

If  all  which  an  accused  person  intends  to  do  would,  if  done,  con- 
stitute no  crime,  it  cai I  be  a  crime  to  attempt  to  do  with  the  same 

purpose  a  part  of  the  thing  intended.  1  Bishop's  Crim.  Law  (7th 
Ed.)  §  717.  The  crime  of  which  the  defendant  was  convicted  neces- 
sarily consists  of  three  elements:  First,  the  act;  second,  the  intent; 
and,  third,  (Ik-  knowledge  of  an  existing  condition.  There  was  proof 
tending  to  establish  two  of  these  elements,  the  first  and  second,  but 


Sec.  2)  SUFFICIENCY    OF   THE   ACT.  201 

none  to  establish  the  existence  of  the  third.  This  was  knowledge 
of  the  stolen  character  of  the  property  sought  to  be  acquired.  There 
could  be  no  such  knowledge.  The  defendant  could  not  know  that 
the  property  possessed  the  character  of  stolen  property  when  it  had 
not  in  fact  been  acquired  by  theft.  The  language  used  by  Ruger, 
C.  J.,  in  People  v.  Moran,  123  N.  Y.  254,  25  N.  E.  412,  10  L.  R.  A. 
109,  20  Am.  St.  Rep.  732,  quoted  with  approval  by  Earl,  J.,  in  People 
v.  Gardner,  144  N.  Y.  119,  38  N.  E.  1003,  28  L.  R.  A.  699,  43  Am. 
St.  Rep.  741,  to  the  effect  that  "the  question  whether  an  attempt  to 
commit  a  crime  has  been  made  is  determinable  solely  by  the  condition 
of  the  actor's  mind  and  his  conduct  in  the  attempted  consummation 
of  his  design,"  although  accurate  in  those  cases,  has  no  application 
to  a  case  like  this,  where,  if  the  accused  had  completed  the  act  which 
he  attempted  to  do,  he  would  not  be  guilty  of  a  criminal  offense.  A 
particular  belief  cannot  make  that  a  crime  which  is  not  so  in  the 
absence  of  such  belief.  Take,  for  example,  the  case  of  a  young  man 
who  attempts  to  vote,  and  succeeds  in  casting  his  vote  under  the  be- 
lief that  he  is  but  20  years  of  age,  when  he  is  in  fact  over  21  and  a 
qualified  voter.  His  intent  to  commit  a  crime,  and  his  belief  that  he 
was  committing  a  crime,  would  not  make  him  guilty  of  any  offense 
under  these  circumstances,  although  the  moral  turpitude  of  the  trans- 
action on  his  part  would  be  just  as  great  as  it  would  if  he  were  in 
fact  under  age.  So,  also,  in  the  case  of  a  prosecution  under  the 
statute  of  this  state  which  makes  it  rape  in  the  second  degree  for  a 
man  to  perpetrate  an  act  of  sexual  intercourse  with  a  female  not  his 
wife  under  the  age  of  18  years.  There  could  be  no  conviction  if  it 
was  established  upon  the  trial  that  the  female  was  in  fact  over  the 
age  of  18  years,  although  the  defendant  believed  her  to  be  younger 
and  intended  to  commit  the  crime.  No  matter  how  reprehensible 
would  be  his  act  in  morals,  it  would  not  be  the  act  forbidden  by  this 
particular  statute.  "If  what  a  man  contemplates  doing  would  not  be 
in  law  a  crime,  he  could  not  be  said,  in  point  of  law,  to  intend  to  com- 
mit the  crime.  If  he  thinks  his  act  will  be  a  crime,  this  is  a  mere  mis- 
take of  his  understanding,  where  the  law  holds  it  not  to  be  such; 
his  real  intent  being  to  do  a  particular  thing.  If  the  thing  is  not  a 
crime,  he  does  not  intend  to  commit  one  whatever  he  may  erroneously 
suppose."    1  Bishop's  Crim.  Law  (7th  Ed.)   §  742. 

The  judgment  of  the  Appellate  Division  and  of  the  Court  of  Gen- 
eral Sessions  must  be  reversed,  and  the  defendant  discharged  upon 
this  indictment,  as  it  is  manifest  that  no  conviction  can  be  had  there- 
under. This  discharge,  however,  in  no  wise  affects  the  right  to  prose- 
cute the  defendant  for  other  offenses  of  a  like  character  concerning 
which  there  is  some  proof  in  the  record,  but  which  were  not  charged 
in  the  present  indictment. 

Chase,  J.  (dissenting).  I  dissent.  Defendant  having,  with  knowl- 
edge, repeatedly  received  goods  stolen  from  a  dry  goods  firm  by  one 
of  its  employes,   suggested  to  the  employe  that  a  certain   specified 


202  THE   CRIMINAL  ACT.  (Ch.   6 

kind  of  cloth  be  taken.  He  was  told  by  the  employe  that  that  particular 
kind  of  cloth  was  not  kept  on  his  floor,  and  he  then  said  that  he 
would  take  a  roll  of  certain  Italian  cloth,  and  carried  it  away,  but 
left  it  in  another  store,  where  he  could  subsequently  get  it  for  delivery 
to  the  defendant.  Before  it  was  actually  delivered  to  the  defendant 
the  employers  discovered  that  the  employe  had  been  stealing  from 
them,  and  they  accused  him  of  the  thefts.  The  employe  then  con- 
fessed his  guilt,  and  told  them  of  the  piece  of  cloth  that  had  been 
stolen  for  the  defendant,  but  had  not  actually  been  delivered  to  him. 
The  roll  of  cloth  so  stolen  was  then  taken  by  another  employe  of 
the  firm,  and  it  was  arranged  at  the  police  headquarters  that  the  em- 
ploye who  had  taken  the  cloth  should  deliver  it  to  the  defendant, 
which  he  did,  and  the  defendant  paid  the  employe  about  one-half  the 
value  thereof.  The  defendant  was  then  arrested,  and  this  indict- 
ment was  thereafter  found  against  him.  That  the  defendant  intended 
to  commit  a  crime  is  undisputed.  I  think  the  record  shows  an  at- 
tempt to  commit  the  crime  of  criminally  receiving  property  as  de- 
fined in  sections  550  and  34  of  the  Penal  Code,  within  the  decisions 
of  this  court  in  People  v.  Moran,  123  N.  Y.  254,  25  N.  E.  412,  10 
L.  R.  A.  109,  20  Am.  St.  Rep.  732,  and  People  v.  Gardner,  144  N. 
Y.  119,  38  N.  E.  1003,  28  L.  R.  A.  699,  43  Am.  St.  Rep.  711. 

Cullen,  C.  J.,  and  Gray,  Edward  T.  Bartlhtt,  Vann,  and  Wer- 
ner, JJ.,  concur  with  Willard  Bartlf/it,  J.  Chase,  J.,  dissents  in 
memorandum. 

Judgment  of  conviction  reversed,  etc. 


SIMPSON  v.  STATE. 

(Supreme  Court  of  Alabama,  1877.    59  Ala.  1,  31  Am.  Rep.  1) 

Brickixl,  C.  J.    The  indictment  contains  a  single  count,  charging, 
in   the  prescribed   form,   the  defendant  with   an   assault   with   intent, 
to  murder  one  Michael  Ford.1     The  offense  charged  must  be  proved, 
and   an  essential   element  of  the  present  offense   is   not  only   an  as- 
sault with  intent  to  murder,  but  the  specific  intent  to  murder  Ford, 
person   named  in  the  indictment.     If  the  intent  was  to  murder 
her,  or  if  there  was  not  the  specific  intent  to  murder  Ford,  there 
cannot  be  a  conviction   of  the  aggravated   offense  charged,   though 
may  be  of  the  minor  offense  of  assault,  or  of  assault  and  bat- 
Barkus  v.  Stale,   fc9  Miss.  17,  19  Am.  Rep.  1;   Jones  v.  State, 
LI  Si  I  315;   Ogletree  v.  State,  28  Ala.  093;    Mor- 

gan v.  State,  33  Ala.  113;  State  v.  Abram,  10  Ala.  928. 

The  intent  cannol  be  implied  as  matter  of  law.    It  must  be  proved 
r  of  fact,  and   its  existence  the  jury  must  determine   from 

i    Pari  Mr  the  "pinion  i«  omitted. 


Sec.  2)  SUFFICIENCY    OF   THE   ACT.  203 

all  the  facts  and  circumstances  in  evidence.  It  is  true  the  aggravated 
offense  with  which  the  defendant  is  charged  cannot  exist,  unless,  if 
death  had  resulted,  the  completed  offense  would  have  been  murder. 
From  this  it  does  not  necessarily  follow  that  every  assault  from  which, 
if  death  ensued,  the  offense  would  be  murder,  is  an  assault  with  in- 
tent to  murder,  within  the  purview  of  the  statute,  or  that  the  specific 
intent,  the  essential  characteristic  of  the  offense,  exists.  Therefore 
in  Moore  v.  State,  18  Ala.  533,  an  affirmative  instruction,  "that  the 
same  facts  and  circumstances  which  would  make  the  offense  murder, 
if  death  ensued,  furnish  sufficient  evidence  of  the  intention,"  was 
declared  erroneous.  The  court  say :  "There  are  a  number  of  cases 
where  a  killing  would  amount  to  murder,  and  yet  the  party  did  not 
intend  to  kill.  As  if  one  from  the  housetop  recklessly  throw  down 
a  billet  of  wood  upon  the  sidewalk  where  persons  are  constantly 
passing,  and  it  fall  upon  a  person  passing  by  and  kill  him,  this  would 
be,  by  the  common  law,  murder;  but  if,  instead  of  killing  him,  it 
inflicts  only  a  slight  injury,  that  party  could  not  be  convicted  of  an 
assault  with  intent  to  murder."  Other  illustrations  may  be  drawn 
from  our  statutes :  Murder  in  the  first  degree  may  be  committed  in 
the  attempt  to  perpetrate  arson,  rape,  robbery,  or  burglary,  and  yet 
an  assault  committed  in  such  attempt  is  not  an  assault  with  intent  to 
murder.  If  the  intent  is  to  ravish,  or  to  rob,  it  is  under  the  statute  a 
distinct  offense  from  an  assault  with  intent  to  murder,  though  pun- 
ished with  the  same  severity.  And  at  common  law,  if  death  results 
in  the  prosecution  of  a  felonious  intent,  from  an  act  malum  in  se,  the 
killing  is  murder.  As  if  A.  shoot  at  the  poultry  of  B.,  intending  to 
steal  them,  and  by  accident  kills  a  human  being,  he  is  guilty  of 
murder.  1  Russ.  Cr.  540.  Yet,  if  death  did  not  ensue,  if  there  was 
a  mere  battery,  or  a  wounding,  it  is  not,  under  the  statute,  an  assault 
with  intent  to  murder.  The  statute  is  directed  against  an  act  done 
with  the  particular  intent  specified.  The  intent  in  fact  is  the  intent  to 
murder  the  person  named  in  the  indictment,  and  the  doctrine  of  an 
intent  in  law  different  from  the  intent  in  fact  has  no  just  application; 
and  if  the  real  intent  shown  by  the  evidence  is  not  that  charged  there 
cannot  be  a  conviction  for  the  offense  that  intent  aggravates,  and  in 
contemplation  of  the  statute  merits  punishment  as  a  felony.  Ogle- 
tree  v.  State,  supra;  Morgan  v.  State,  supra.  As  is  said  by  Mr. 
Bishop,  the  reason  is  obvious.  The  charge  against  the  defendant  is 
that,  in  consequence  of  a  particular  intent  reaching  beyond  the  act 
done,  he  has  incurred  a  guilt  beyond  what  is  deducible  merely  from 
the  act  wrongfully  performed,  and  therefore  to  extract  by  legal  fic- 
tion from  this  act  such  further  intent,  and  then  add  it  back  to  the  act 
to  increase  its  severity,  is  bad  in  law.     1  Bish.  Cr.  Law,  §  514. 

An  application  of  these  general  principles  will  show  that  several 
of  the  instructions  given  by  the  city  court  were  erroneous,  and  some 
of  them  misleading,  or  invasive  of  the  province  of  the  jury.  The 
sixth  asserts  the  familiar  principle  of  the  law  of  evidence  that  a  man 


204 


THE   CRIMINAL   ACT. 


(Ch.   6 


\" 


must  be  presumed  to  intend  the  natural  and  probable  consequences 
of  his  acts,  and  from  it  draws  the  conclusion  "that,  if  a  man  shoots 
another  with  a  deadly  weapon,  the  law  presumes  that  by  such  shoot- 
ing he  intended  to  take  the  life  of  the  person  shot."  Whether  this 
instruction  would  or  would  not  be  correct,  if  death  had  ensued  from 
the  shooting  and  the  defendant  was  on  trial  for  the  homicide,  it  is 
not  now  important  to  consider.  In  a  case  of  this  character  the  in- 
struction is  essentially  erroneous,  for,  if  it  has  any  force,  it  con- 
verts the  material  element  of  the  offense,  the  intent  to  murder  a 
particular  person,  into  a  presumption  of  law,  drawn  from  the  nature 
of  the  weapon  and  the  act  done  with  it;  while  the  intent  is  a  fact 
which  must  be  found  by  the  jury,  and  the  character  of  the  weapon 
and  the  act  done  are  only  facts  from  which  it  may  or  may  not  be  in- 
ferred. The  weapon  used,  and  the  act  done,  may  in  the  light  of  other 
facts  and  circumstances  import  an  intent  to  maim,  or  merely  to  wound, 
distinct  offenses  from  that  imputed  to  the  defendant;  and  maiming 
or  wounding  is  a  probable  natural  consequence  of  the  act  done  with 
such  weapon. 

The  result  is  that  the  judgment  of  the  city  court  is  reversed,  and 
the  cause  remanded.  The  prisoner  will  remain  in  custody  until  dis- 
charged by  due  course  of  law.2 


III.  Conspiracy. 

STATE  v.  BUCHANAN. 

(Court  of  Appeals  of  Maryland,  1821.    5  liar.  &  J.    317,  9  Am.  Dec.  534.) 

This  was  an  indictment  charging  the  defendants  in  the  second  count 
with  a  conspiracy  falsely,  fraudulently,  and  unlawfully,  by  wrong- 
ful and  indirect  means  to  cheat,  defraud,  and  impoverish  the  presi- 
dent, directors,  and  company  of  the  Bank  of  the  United  States.  To 
this  indictment  there  was  a  demurrer  that  the  matter  contained  in 
the  indictment  was  not  sufficient  to  sustain  the  prosecution.  The  coun- 
ty court  ruled  the  demurrer  good  (Dorsey,  C.  J.,  dissenting),  and 
discharged  the  defendants.  The  present  writ  of  error  was  brought 
on  the  part  of  the  state. 

t  Accord:  Reg.  v.  Donovan,  4  Cox,  C.  C.  401  (1850).  See,  also,  Common- 
wealth v.  Brosk,  s  pa,  Dlat.  i:.  <;:;s  (1899). 

"The  accused  being  under  14  years  of  age,  and  conclusively  presumed  to 
h<-  incapable  of  committing  the  crime  <>r  rape,  It  logically  follows,  .-is  a  plain, 
legal  deduction,  thai  be  was  also  Incapable  In  law  of  an  attempl  to  commit 
\\  Be  could  not  be  held  to  be  guilty  of  an  attempl  to  commll  an  offense 
which  be  was  physically  Impotent  to  perpetrate."  Riley,  .t..  In  Foster  v. 
Commonwealth,  96  va.  806,  81  B.  B.  503,  42  L.  R.  A.  r.s-.t.  to  Am.  St.  ir.-p. 
sic  (1898).     Contra:     Commonwealth  v.  Green,  2  Pick.  (Mass.)  880  (1824). 

There  can  be  no  conviction  Cor  an  attempl  to  commll  b  crime  which  is 
only  an  attempt,  as  embracery.  State  v.  Sales,  2  Nev.  268  (1866),  or 
lit,  Wilson  v.  State,  58  Ga.  205  I L874). 


SCC.  2)  SUFFICIENCY    OF   THE    ACT.  205 

The  case  was  argued  in  this  court  before  Chase,  C.  J.,  Buchanan, 
Earle,  and  Martin,  J  J. 

Chase,  C.  J.1  I  think  it  may  be  assumed,  as  a  position  which  can- 
not be  controverted  and  is  free  from  doubt,  that  the  common  law  of 
England,  as  it  was  understood  at  the  time  of  the  Declaration  of 
Rights,  was  the  law  of  Maryland;  and  I  think  the  position  is  equally 
clear  that  it  must  be  ascertained  by  the  writings  of  learned  men  of 
the  profession  and  by  the  judicial  records  and  adjudged  cases  of  the 
courts  of  England. 

The  questions  now  occur:  Do  the  facts  contained  in  the  indictment 
constitute  the  crime  or  offense  of  conspiracy?  And  is  conspiracy  an 
offense  at  common  law,  indictable  and  punishable  as  such? 

Sergeant  Hawkins,  in  his  Pleas  of  the  Crown,  c.  72,  in  defining 
conspiracy  at  common  law,  makes  use  of  strong  and  explicit  lan- 
guage, and  says  there  can  be  no  doubt  but  that  all  confederacies  what- 
soever, wrongfully  to  prejudice  a  third  person,  are  highly  criminal 
at~cdmmon  law,  as  where  divers  persons  confederate  together  by  in- 
direct means  to  impoverish  a  third  person.  This  definition  is  cor- 
roborated and  supported  by  adjudged  cases  in  the  courts  of  England, 
and  especially  in  the  Court  of  King's  Bench. 

In  1  Lev.  125,  1  Burns'  Justice,  355,  Rex  v.  Sterling  and  Others, 
Brewers  of  London,  information  for  unlawfully  conspiring  to  im- 
poverish the  excisemen  by  making  orders  that  no  small  beer,  called 
gallon  beer,  should  be  made  for  a  certain  time,  etc.,  the  whole  court 
concurred  in  the  opinion,  and  gave  judgment  for  the  king. 

St.  33  Edw.  1,  de  conspiratoribus,  was  made  in  affirmance  of  the 
common  law,  and  is  a  final  definition  of  the  instances  or  cases  of  con- 
spiracy mentioned  in  it;  but  certainly  it  does  not  comprehend  all  the 
cases  of  conspiracy  at  the  common  law,  which  is  most  apparent  from 
the  adjudged  cases  of  the  courts  of  England  on  that  subject. 

1  consider  the  adjudications  of  the  courts  of  England,  prior  to  the 
era  of  the  independence  of  America,  as  authority  to  show  what  the 
common  law  of  England  was,  in  the  opinion  of  the  judges  of  the 
tribunals  of  that  country,  and  since  that  time,  to  be  respected  as  the 
opinions  of  enlightened  judges  of  the  jurisprudence  of  England. 

The  better  opinion  appears  to  be  that  a  conspiracy  to  do  an  unlaw- 
ful__actjs_an  indictable  offense,  although  the  object  of  the  conspiracy 
is  not  executed.2  In  this  case  the  conspiracy  to  cheat,  defraud,  and 
impoverish  the  Bank  of  the  United  States,  by  appropriating  the  mon- 

i  The  indictment  is  abridged,  and  the  argument  of  counsel  and  the  con- 
curring opinion  of  Buchanan,  J.,  are  omitted. 

2  In  some  states  by  statute  an  overt  act  is  necessary  in  specified  cases  to 
constitute  the  crime  of  conspiracy.  See  People  v.  Daniels,  105  Cal.  262, 
38  Pac.  720  (1894);  State  v.  Clary,  64  Me.  369  (1875);  Wood  v.  State,  47 
N.  J.  Law,  180  (1885);  People  v.  Flack,  125  N.  Y.  324,  26  N.  E.  267,  11  L. 
R.  A.  807  (1891) ;   U.  S.  v.  Barrett  (C.  C.)  65  Fed.  62  (1894). 


206  THE   CRIMINAL   ACT.  (Cll.   6 

eys,  promissory  notes,  and  funds  of  the  bank  to  the  use  of  the  ac- 
cused, has  been  proved  by  the  admission  and  confession  of  the  de- 
fendants, and  a  consummation  of  all  the  overt  acts  has  been  fully  es- 
tablished. 

The  Poulterer's  Case,  9  Coke,  56,  57:  The  falsa  alligantia  is  a  false 
binding,  each  to  the  other,  by  bond  or  promise  to  execute  some  un- 
lawful act.  Before  the  unlawful  act  executed,  the  law  punishes  the 
coadjunction,  confederacy,  or  false  alliance,  to  the  end  to  prevent  the 
unlawful  act.  "Quia  quando  aliquid  prohibetur,  prohibetur  et  id  per 
quod  pervenitur  ad  illud.  Et  effectus  punitur  licet  non  sequatur  ef- 
fectus."  And  in  these  cases  the  common  law  is  a  law  of  mercy,  for 
it  prevents  the  malignant  from  doing  mischief  and  the  innocent  from 
suffering  it.    The  defendants  were  punished  by  fine  and  imprisonment. 

I  think  it  is  established  by  the  decisions  of  the  courts  of  England 
that  a  conspiracy  to  cheat  is  an  offense  indictable  and  punishable  at 
common  law.  Rex  v.  Wheatly,  2  Burr.  1125.  A  cheat  or  imposition 
by  one  person  only  is  not  indictable  at  common  law,  but  a  conspiracy  to 
cheat  by  two  or  more  is  indictable  at  common  law,  because  ordinary 
care  and  caution  is  no  guard  against  it.  Indictment  against  Macarty 
and  others,  for  a  combination  to  cheat  in  imposing  on  the  prosecutor 
stale  beer  mixed  with  vinegar  for  port  wine.  6  Mod.  301.  Indict- 
ment against  Cope  and  others,  for  a  conspiracy  to  ruin  the  trade  of  the 
prosecutor  by  bribing  his  apprentices  to  put  grease  into  the  paste, 
which  had  spoiled  his  cards.  1  Strange,  114.  Indictment  against  Kin- 
nersley  and  Moore,  for  a  conspiracy  to  charge  Lord  Sunderland  with 
endeavoring  to  commit  sodomy  with  said  Moore,  in  order  to  extort 
money  from  Lord  Sunderland.  The  whole  court  gave  judgment  in 
support  of  the  indictment,  and  punished  Kinnersley  by  fine,  imprison- 
ment, etc.,  and  sentenced  Moore  to  stand  in  the  pillory,  suffer  a 
year's  imprisonment,  and  to  give  security  for  his  good  behavior.  1 
Stra.  193,  196.  Indictment  against  Rispal,  3  Burr.  1320:  The  in- 
dictment sets  forth  that  Rispal  and  two  others  did  wickedly  and  un- 
lawfully conspire  among  themselves  falsely  to  accuse  John  Chilton 
with  having  taken  a  quantity  of  human  hair  out  of  a  bag,  etc.,  for 
the  purpose  of  exacting  and  extorting  money  from  the  said  John 
Chilton.  The  court  were  of  opinion  that  the  indictment  was  well  laid, 
and  thai  the  gist  of  the  offense  is  the  unlawful  conspiring  to  injure 
Chilton  by  this  false  charge. 

A  combination  among  laborers  or  mechanics  to  raise  their  wages, 
is  a  conspiracy  at  common  law,  and  indictable  (8  Mod.  10),  although 
lawful  for  each  separately  to  raise  his  wages. 

I  con  i'l'T  the  doctrine  so  firmly  established  by  the  decisions  of 
the  courts  of  England,  prior  to  the  era  of  our  independence,  that  a 
combination  or  confederacy  to  do  an  unlawful  act  is  a  conspiracy  in- 
dictable and  punishable  al  common  law,  thai  1  have  deemed  it  un- 
necessary to  refer  to  all  the  ca  i     relative  to  this  question,  and  there- 


Sec.  2)  SUFFICIENCY    OF   THE   ACT.  207 

fore  have  contented  myself  with  citing  some  of  those  which  appear  to 
me  most  apposite. 

The  opinion  of  Lord  Ellenborough  in  Rex  v.  Turner  and  Others, 
13  East,  230,  does  not  impugn,  but  strongly  sanctions  and  confirms, 
this  doctrine.  He  says  the  cases  of  conspiracy  have  gone  far  enough. 
He  should  be  sorry  to  push  them  still  further.  The  charge  in  the  in- 
dictment was  for  committing  a  civil  trespass.  He  also  says  all  the 
cases  in  conspiracy  proceed  on  the  ground  that  the  object  of  the  con- 
spiracy is  to  be  effected  by  some  falsity. 

I  am  of  opinion  that  the  judgment  be  reversed,  and  the  demurred 
overruled. 

Judgment  reversed. 


REX  v.  BYKERDIKE. 
(Lancaster  Assizes,  1832.    1  Moo.  &  R.  179.) 

First  count  of  the  indictment  charged  that  R.  Bykerdike,  with 
divers  others,  etc.,  did  conspire,  combine,  confederate,  and  agree  un- 
lawfully to  intimidate,  p?5jutlice,  and  oppress  one  John  Garforth  in 
his  trade  and  occupation  as  agent  for  a  certain  colliery,  to  wit,  etc., 
and  to  prevent  the  workmen  of  the  said  J.  G.  from  continuing  to  work 
in  the  said  colliery. 

Second  count  laid  a  conspiracy  to  oppress  and  injure  Joseph  Jones 
and  others,  partners  in  a  certain  colliery,  to  wit,  etc.,  and  to  prevent 
the  workmen  in  the  employ  of  the  said  J.  J.  and  others,  his  partners, 
from  continuing  to  work  at  the  said  colliery,  and  compel  the  said  J. 
J.  and  others,  his  partners,  to  discharge  the  said  workmen  in  their 
employ. 

Jones  was  an  owner  of  the  Fairbottom  Colliery.  Garforth  was 
agent  for  the  colliery.  Seven  colliers  had  been  summoned  before  a 
magistrate  by  Garforth  for  refusing  to  work.  It  appeared  that  this 
was  done  at  their  own  request,  as  they  were  afraid  to  work,  except 
under  the  appearance  of  being  compelled  to  do  so.  The  body  of  the 
other  men  met,  having  taken  certain  oaths,  and  agreed  upon  a  letter 
addressed  to  Garforth,  to  the  effect  that  all  workmen  in  Garforth's 
employ  would  "strike  in  fourteen  days  unless  the  seven  men  were  dis- 
charged from  the  colliery."  The  letter  concluded:  "By  order  of  the 
board  of  directors  for  the  body  of  coal  miners.  Fairbottom  Col- 
liery."1 

Patteson,  J.,  told  the  jury  that  a  conspiracy  to  procure  the  dis- 
charge of  any  of  the  workmen  would  support  the  indictment,  which 
did  not  necessarily  lay  the  intent  as  to  all  the  workmen,  and,  if  it  did, 
that  it  was  still  a  question  whether  the  facts  would  not  have  proved 
it  as  to  all;    further,  that  the  statute  never  meant  to  empower  work- 

i  Argument  of  counsel  is  omitted. 


208  THE   CRIMINAL   ACT.  (Cll.   6 

men  to  meet  and  combine  for  the  purpose  of  dictating  to  the  master 
whom  he  should  employ,  and  that  this  compulsion  was  clearly  illegal. 
The  defendant  was  convicted.2 


COMMONWEALTH  v.  SHERIFF. 

(Court  of  Quarter  Sessions  of  Philadelphia,  1S81.    15  Phila.  303.) 

Habeas  corpus. 

Allison,  P.  J.  The  defendants  were  charged,  on  oath  of  Michael 
T.  Benerman,  with  having  unlawfully  conspired  to  injure  the  firm 
of  Sherman  &  Co.,  by  molesting,  intimidating,  and  annoying  said  firm 
in  their  business,  and  were  required  to  give  bail  in  the  sum  of  $600 
each,  to  answer  said  charge  at  the  present  October  term  of  the  quarter 
sessions. 

The  defendants,  representing  a  trades  union  association,  called  up- 
on a  member  of  the  firm  at  their  office  or  place  of  business,  and  gave 
notice  that  the  association  had  decided  upon  an  increase  of  wages  to 
be  paid  to  journeymen  printers  employed  in  the  offices  of  this  city, 
and  in  case  the  increased  rates  were  not  paid  by  the  said  firm  to  the 
persons  in  their  employ  there  would  be  a  strike  on  the  part  of  their 
employes.  The  demand  for  increase  of  compensation  having  been 
refused,  the  defendants  proceeded  to  the  office  or  shop  of  the  com- 
plainants, where  their  journeymen  were  at  work,  and  notified  them 
that,  the  advanced  rate  of  compensation  having  been  refused,  there 
would  be  a  strike,  or  that  a  strike  was  ordered,  and  that  after  that 
day  they  should  cease  to  work  for  Sherman  &  Co.  until  their  wages 
had  been  advanced  to  the  standard  fixed  by  the  union.  All  of  the 
workmen,  with  one  exception,  including  the  foreman  of  the  office, 
were  members  of  the  union,  and  according  to  the  law  of  their  organ- 
ization were  required  to  obey  the  rules  and  regulations  of  the  body 
of  which  the  defendants  were  the  duly  appointed  representatives. 
Does  this  conduct  on  the  part  of  defendants  amount  to  an  unlaw- 
ful conspiracy,   for  which  they  may  be  indicted  and  placed  on  trial  ? 

Prior  to  the  act  of  June  14,  1872  (P.  L.  1175),  and  the  supplemental 
act  of  April  '20,  1870  (P.  L.  45),  the  law,  as  then  settled,  would  have 
required  this  question  to  be  answered  in  the  affirmative.  A  con- 
spiracy of  workmen  to  raise  wages  by  combining  to  coerce  other 
i-  to  conform  to  rules  adopted  by  such  combination,  regulating 
the  price  of  labor,  and  carrying  such  rules  into  effect  by  acts  and 
declarations  tending  to  control  the  will  and  conduct  of  others,  con- 
stituted a  criminal,  and  therefore  an  indictable,  offense.  3  Wharton, 
Cr.  Law,  §  8322;  Bishop's  Cr.  Law,  §$  230,  231.  Tins  is  equally 
true,   whether   tbc   conspiracy  was   intended   to   coerce   the   free   will 

i  Accord:    State  v.  Donaldson,  82  x.  J.  Law,  151,  90  Am.  Dec.  G19  (1867). 


Sec.  2)  SUFFICIENCY   OF   THE   ACT.  209 

and  freedom  of  action  of  workmen  or  employer.  In  3  Russell  on 
Crimes,  the  law  as  there  stated  is :  "A  combination  to  obstruct  others 
in  carrying  on  their  business  and  forcing  them  to  submit  to  a  book  of 
prices,  inducing  workmen  to  leave  their  employer's  service,  the  pur- 
pose being  to  obstruct  the  prosecutors  in  their  manufacture  and  in- 
jure them  in  their  business,  and  thus  force  their  consent,  woujd  be  a 
violation  of  law,  which  would  be  indictable."  In  Commonwealth  v. 
Carlisle,  Brightly's  Rep.  40,  Gibson,  J.,  said :  "A  combination  is 
criminal  whenever  the  act  to  be  done  has  a  necessary  tendency  to 
prejudice  the  public  or  oppress  individuals  by  unjustly  subjecting  them 
to  the  power  of  the  confederates.  Where  the  purpose  is  injurious  or 
unlawful,  the  gist  of  the  offense  is  the  conspiracy."  Morris  Run 
Coal  Co.  v.  Coal  Co.,  68  Pa.  186,  8  Am.  Rep.  159,  and  numerous 
illustrations  of  the  doctrine  there  cited  by  Agnew,  C.  J. 

Admitting  the  law  to  have  been  clearly  established,  so  that  it  would 
have  subjected  the  defendants  to  indictment  for  the  combination  and 
acts  done  in  pursuance  of  the  conspiracy,  as  proved  on  the  hearing  in 
this  case,  what  is  their  standing  now  before  or  under  the  law  of 
Pennsylvania,  as  affected  by  the  legislation  of  1872  and  1876? 

The  act  of  1872  (Purd.  Dig.  351)  declares  that  it  shall  be  lawful 
for  workingmen,  acting  either  as  individuals  or  as  members  of  any 
club,  society,  or  association,  to  refuse  to  work  for  any  person  when- 
ever, among  other  causes  recited  in  the  act,  to  continue  such  work 
would  be  contrary  to  the  rules  or  regulations  of  such  organization 
to  which  they  may  belong,  and  that  such  refusal  shall  not  subject  them 
to  prosecution  or  indictment  for  conspiracy.  This  act  sweeps  away 
in  a  few  words  nearly  all  of  the  law  which  had  been  long  established 
in  England,  and  adopted  in  this  country,  touching  organizations  or 
combinations  of  workingmen  having  for  their  object  the  regulation 
of  amounts  to  be  paid  to  them  for  their  work  by  combination  in 
clubs  or  societies.  That  which  had  been  held  to  be  contrary  to  law 
is  declared  to  be  lawful,  and  that  which  before  would  have  subjected 
workingmen  to  criminal  prosecution,  the  act  says,  may  be  done  with- 
out incurring  the  risk  of  indictment.  It  is,  therefore,  no  longer  un- 
lawful to  combine  and  organize  and  adopt  regulations  having  for 
their  object  the  increase  of  wages  or  the  consideration  to  be  paid  for 
labor.  The  effect  of  such  combination  may  be  to  prejudice  the  in-") 
terests  of  the  community,  and  may  tend  to  injure  individuals  in  their 
business  by  causing  the  employed  to  cease  to  work  for  an  employer, 
and  thus  compel  him  to  submit  to  a  book  or  standard  of  prices,  which 
had  been  fixed  by  workingmen  who  had  combined  and  organized  for 
that  purpose.  The  act  contains,  however,  the  material  proviso  that 
whoever  shall  hinder  persons  who  desire  to  labor  for  their  employers 
from  so  doing,  or  other  persons  from  being  employed  as  laborers, 
shall  still  be  subject  to  prosecution  and  punishment  as  for  a  criminal 
conspiracy.  What  constituted  such  hindrance  was  not  defined,  and 
it  was  for  the  purpose  of  removing  all  ambiguity  connected  with  the 
Mik.Cb.L.— 14 


210  THE   CRIMINAL   ACT.  (Ch.   6 

word  "hinder"  in  the  act  of  1872  that  the  supplemental  law  of  April 
20,  18? 6,  was  passed,  which  declares  that  the  construction  to  be  given 
to  the  proviso  contained  in  the  act  of  1872  shall  be  that  the  use  of 
lawful  and  peaceful  means,  having  for  their  object  a  lawful  purpose, 
shall  not  be  regarded  as  "in  any  way  hindering''  persons  who  desire 
to  labor,  and  that  the  use  of  force,  threat,  or  menace  of  harm  to 
persons  or  property  shall  alone  be  regarded  as  in  any  way  hindering 
persons  who  desire  to  labor  for  their  employers  from  so  doing,  or 
other  persons  from  being  employed  as  laborers. 

Under  this  statement  of  the  law  of  Pennsylvania,  as  it  stands  to- 
day in  full  force,  the  only  question  for  our  consideration  is,  do  the 
acts  of  the  defendants,  representing  and  acting  in  behalf  of  a  labor 
society,  club,  or  organization,  subject  them  to  indictment?  Does 
calling  together  upon  the  firm  of  Sherman  &  Co.,  demanding  an  in- 
crease of  wages  for  the  journeymen  printers  employed  by  the  firm, 
with  notice  that  a  refusal  would  result  in  a  strike  of  the  workmen, 
followed  by  the  defendants  going  together  to  the  workshop  of  the 
prosecutors  and  notifying  the  journeymen  that  a  strike  was  order- 
ed, constitute  the  use  of  force,  threat,  or  menace  of  harm  to  the 
persons  or  property  of  the  firm,  or  to  the  members  of  the  firm  of 
Sherman  &  Co.,  or  to  their  employes?  Are  these  means  otherwise 
than  lawful  and  peaceful,  and  had  they  for  their  object  a  lawful 
purpose?  We  are  unable  to  see  wherein  they  offend  against  the 
law.  If  laborers  may  now  lawfully  combine,  and,  as  members  of 
such  combination,  refuse  to  work  for  an  employer,  when,  in  their 
opinion,  the  wages  paid  to  them  are  insufficient,  and  if  they  may 
now  lawfully  refuse  to  work,  when  to  do  so  would  be  contrary  to 
the  rules,  regulations,  or  by-laws  of  any  association  to  which  they 
may  belong,  how  can  it  be  considered  as  amounting  to  force,  threat, 
or  menace  of  harm  for  two  or  more  persons,  authorized  to  act  for 
such  association,  to  say  to  an  employer  that  a  rule,  by-law,  or  regula- 
tion of  the  association  required  the  payment  of  increased  wages,  and 
that,  on  refusal  to  make  such  payment,  their  workmen  were,  by 
virtue  of  their  membership  of  a  lawful  society  and  its  regulations, 
required  to  stop  work?  It  is  true  that  striking,  as  it  is  called,  or  re- 
cusing to  work,  might,  and  probably  would,  result  in  harm  to  the 
business  of  Sherman  &  Co.;  but  that  is  the  result  of  what  the  work- 
men may  now  lawfully  do  in  their  associated  capacity,  and  does  not 
constitute  a  threat  or  menace  of  harm  in  the  sense  in  which  these 
terms  are  to  be  understood  as  they  are  used  in  the  act  of  1876.  The 
fact  is  not  to  be  overlooked  that  it  had  too  often  been  a  matter  of 
just  complaint  that  workmen  resorted  to  actual  force,  to  threats  and 
menace  of  injury  to  persons  and  property  in  the  enforcement  of  a 
demand  for  an  advanced  rate  of  wages.  Upon  this  the  law  always 
frowned.  Such  ad  were  always  illegal.  When  done  by  agreement 
between  two  or  more  persons,  they  ruin  united  to  overt  acts,  grow- 
ing out  of  a  criminal  conspiracy,  which  tended  to  the  injury  of  thft 


Sec.  2)  SUFFICIENCY   OF  THE   ACT.  211 

community  and  to  the  subversion  of  individual  rights  of  persons  and 
property.  This  was  the  wrong  referred  to  in  the  act  of  1876,  which 
it  was  declared  would  subject  the  offenders  to  punishment  in  the 
future,  as  it  had  in  the  past.  Such  acts  were  declared  to  be  outside 
of  the  protection  contemplated  by  the  legislation  which  we  are  now 
considering,  because  such  means  are  neither  lawful  nor  peaceful,  and 
because  they  are  calculated  to  improperly  hinder  persons  who  desire 
to  labor  for  their  employers  from  so  doing,  and  to  prevent  other  per- 
sons from  being  employed  as  laborers. 

It  was  further  urged  on  behalf  of  the  commonwealth  that  the  in- 
trusion of  the  defendants  into  the  shop  or  workroom  of  the  prose- 
cutors was  in  itself  a  trespass,  and  therefore  illegal,  and  that  the 
means  employed  to  carry  into  effect  the  purposes  of  the  defendants 
are  not  sanctioned  by  the  act  of  1876.  But  this  proposition  is  not 
borne  out  by  the  testimony  in  the  cause;  for  it  has  not  been  shown 
that  visits  like  the  one  made  by  defendants — workmen  of  the  same 
craft  going  to  shops  where  other  workmen  are  employed — are  not, 
at  least,  with  the  implied  permission  of  the  employers.  It  is  not  pre- 
tended in  this  case  that  defendants  were  forbidden  to  enter  the  shop, 
or  that  they  were  ordered  to  depart  after  they  had  entered,  or  that 
their  conduct  was  not  peaceable  and  orderly.  The  foreman  having 
charge  of  the  shop  was  present,  and  knew  of  the  presence  of  the  de- 
fendants and  of  the  object  of  their  visit.  To  this  he  did  not  object, 
and,  in  so  far  as  he  represented  the  prosecutors,  may  be  said  to  have 
consented  to,  if  he  did  not  approve  of,  all  that  was  said  and  done. 
Reaching  the  conclusion  that  the  defendants  are  not  shown  to  have 
done  any  act  contrary  to  law,  that  no  prima  facie  case  of  unlawful 
combination  or  criminal  conspiracy  has  been  shown  by  the  testimony, 
they  are  hereby  discharged. 


COTE  v.  MURPHY. 

(Supreme  Court  of  Pennsylvania,  1894.    159  Pa.  420,  28  Atl.  190.  23  L.  R.  A. 
135,  39  Am.  St.  Rep.  68G.) 

Mr.  Justice  Dean.1  The  defendants  were  members  of  the  Planing 
Mill  Association  of  Allegheny  County  and  Builders'  Exchange  of 
Pittsburgh.  The  different  partnerships  and  individuals  composing 
these  associations  were  in  the  business  of  contracting  and  building 
and  furnishing  building  material  of  all  kinds.  On  the  1st  of  May, 
1891,  there  was  a  strike  of  the  carpenters,  masons,  and  bricklayers  in 
the  building  trades,  bringing  about,  to  a  large  extent,  a  stoppage  of 
building. 

The  men  demanded  an  eight-hour  day,  with  no  reduction  in  wages 
theretofore  paid,  which  the  employers  refused  to  grant.    Then  a  strike 

i  The  opinion  only  is  printed. 


j&r 


212  THE   CRIMINAL  ACT.  (Cll.   6 

by  the  unions  of  the  different  trades  was  declared.  The  plaintiff,  at 
the  time,  was  doing  business  in  the  city  of  Pittsburgh  as  a  dealer  in 
building  materials.  He  was  not  a  member  of  either  the  "Planing  Mill 
Association,"  or  of  the  "Builders'  Exchange."  There  were  also  con- 
tractors and  builders,  who  belonged  to  neither  of  these  organizations, 
who  conceded  the  demands  of  the  workmen.  They  sought  to  se- 
cure building  material  from  dealers  wherever  they  could,  and  thus 
go  on  with  their  contracts.  If  they  succeeded  in  purchasing  the  nec- 
essary material,  the  result  would  be  that  at  least  some  of  the  strik- 
ing workmen  would  have  employment  at  a  higher  rate  of  wages  than 
the  two  associations  were  willing  to  pay.  The  tendency  of  this  was 
to  strengthen  the  cause  of  the  strikers,  for  those  employed  were  able 
to  contribute  to  the  support  of  their  fellow  workmen  who  were  idle. 
The  two  associations  already  named  sought  to  enlist  all  concerned  as 
contractors  and  builders  or  as  dealers  in  supplies,  whether  members 
of  the  associations  or  not,  in  the  furtherance  of  the  one  object,  re- 
sistance to  the  demands  of  the  workmen.  The  plaintiff,  and  six  other 
individuals  or  firms  engaged  in  the  same  business,  refused  to  join  them, 
and  undertook  to  continue  sales  of  building  material  to  those  builders 
who  had  conceded  the  eight-hour  day.  The  Planing  Mill  Associa- 
tion and  Builders'  Exchange  tried  to  limit  their  ability  to  carry  on 
work  at  the  advance,  by  inducing  lumber  dealers  and  others  to  refrain 
from  shipping,  or  selling  them  in  quantities,  the  lumber  and  other 
material  necessary  to  carrying  on  the  retail  business.  In  several  in- 
stances their  efforts  were  successful,  and  the  plaintiff  did  not  suc- 
ceed in  purchasing  lumber  from  certain  of  the  wholesale  dealers  in 
Cleveland  and  Dubois,  where  he  wanted  to  buy.  The  defendants 
were  active  members  of  one  or  other,  or  both  of  the  associations  en- 
gaged in  the  contest  with  the  striking  workmen.  The  strike  continued 
about  two  months.  After  it  was  at  an  end,  the  plaintiff  brought  suit 
against  defendants,  averring  an  unlawful  and  successful  conspiracy 
to  injure  him  in  his  business  and  to  interfere  with  the  course  of  trade 

rally,  to  the  injury  of  the  public;  that  the  conspiracy  was  car- 
ried out  by  a  refusal  to  sell  to  him  building  materials  themselves,  and 
by  threats  and  intimidation  preventing  other  dealers  from  doing  so. 
r  the  instructions  of  the  court  upon  the  evidence,  there  was  a 
verdict  fur  plaintiff  in  the  sum  of  $2,500  damages,  which  the  court  re- 
duced to  $l,o00;    then  judgment,  and  from  that  defendants  take  this 

al. 
The  plaintiff's  case  is  not  one  which  appeals  very  strongly  to  a 
of  justice.  The  mechanics  of  Pittsburgh  engaged  in  the  dif- 
ferent building  trades,  on  1st  of  May,  L891,  demanded  that  eight 
hours  should  be  computed  as  a  day  in  payment  of  their  wages.  Their 
right  to  do  this  is  clear.  It  is  one  of  the  indefeasible  rights  of  a  me- 
chanic or  laborer  in  this  commonwealth  to  fix  such  value  on  his  serv- 
ices as  he  sees  proper,  and,  under  the  Constitution,  there  is  no  power 
lodged  anywhere  to  compel  him  to  work  for  less  than  he  chooses  to 


Sec.  2)  SUFFICIENCY    OF   THE    ACT.  213 

accept.     But  in  this  case  the  workmen  went   further.     They  agreed 
that  no  one  of  them  would  work  for  less  than  the  demand,  and  by  all 
lawful  means,  such  as  reasoning  and  persuasion,  they  woulH  prevent 
offTef'workmen  from  working  for  less.     Their  right  to  do  this  is  also 
clear.     At  common  law  this  last  was  a  conspiracy  and  indictable,  bu 
under  the  acts  of  1869,  1872,   1876,  and   1891   employes,  acting  to- 
gether by  agreement,  may,  with  few  exceptions,  lawfully  do  all  those 
things  which  the  common  law  declared  a  conspiracy.     They  are  still 
forbidden,  in  the  prosecution  of  a  strike,"  preventing  any  one  of  their 
number  who  may  desire  to  labor  from  doing  so,  by  force  or  menace 
of  harm  to  person  or  property;    but  the  strike  here  was  conducted 
throughout  in  an  orderly,  lawful  manner.     The  employers,  contract- 
ors, and  others  engaged  in  building  and  furnishing  supplies,  members 
of  the  two  associations  already  mentioned,   to  which  these   defend- 
ants belonged,  refused  to  concede  the  demands  of  the  workmen,  and 
there  then  followed  a  prolonged  and  bitter  contest.    The  members  of 
the  associations  refused  to  furnish  supplies  to  those  engaged  in  the 
construction  of  any  building  where  the  contractor  had  conceded  the 
eight-hour  day.    This,  as  individual  dealers,  they  had  a  clear  right  to 
do.    They  could  sell  and  deliver  their  material  to  whom  they  pleased. 
But  they  also  went  further.     They  agreed  among  themselves  that  no 
member  of  the  association  would  furnish  supplies  to  those  who  were 
in  favor  of  or  had  conceded  the  eight-hour  day,  and  that  they  would  dis- 
suade other  dealers,  not  members  of  the  associations,   from  furnish- 
ing building  material  to  such  contractors  or  retail  dealers.    To  the  ex- 
tent of  their  power  this  agreement  was  carried  out.     This  clearly  war;- 
combination,  and  the  acts  of  assembly  referred  to  do  not,  in  terms, 
embrace  employers.     They  only  include  within  their  express  terms 
workmen.    Hence,  it  is  argued  by  counsel  for  appellee,  these  defend- 
ants are  subject  to  all  the  common-law  liability  of  conspirators  in 
their  attempts  to  resist  the  demand  for  increased  wages ;  that  is,  there 
can  be  a  combination  among  workmen  to  advance  wages,  but  there 
can  be  no  such  combination  of  employers  to  resist  the  advance.    That 
which  by  statute  is  permitted  to  the  one  side,  the  common  law  still 
denies  to  the  other.     If  this  position  be  well  taken,  we  then  have  this 
inequality:    The  plaintiff,  who  is  aiding  a  combination,  either  direct- 
ly or  indirectly,   intentionally   or  unintentionally,   to   advance   wages, 
sues  for  damages  members  of  another  combination  who  resist  the  "ad- 
vance.    Nor  is  there  any  difference  in  the  character  of  the  acts  or 
means  on  both  sides  in  furtherance  of  their  purposes.     The  workmen 
will  not  work  themselves,  and  they  use  persuasion  and  reason  with 
their  fellows  to  keep  them  from  going  to  work  until  the  demand  is 
conceded.     The  employers  will  not  sell  to  contractors  who  concede 
the  demand,  and  they  do  their  best  to  persuade  others  engaged  in  the 
same  business  from  doing  so. 

Then  the  element  of  real  damage  to  plaintiff  is  absent.  By  far  the 
larger  number  of  dealers  in  the  city  and  county  were  members  of  the 
combination  which  refused  to  sell.     Onlv  the  plaintiff  and  six  other? 


214  THE   CRIMINAL   ACT.  (Ch.   6 

refused  to  enter  the  combination.  The  result  was  that  these  seven 
had  almost  a  monopoly  of  furnishing  supplies  to  all  builders  who  con- 
ceded the  advance.  Plaintiff  admits  in  his  own  testimony  that  thereby 
his  business  and  profits  largely  increased.  In  a  few  instances  he  paid 
more  to  wholesale  dealers  and  put  in  more  time  buying  than  he  would 
have  done  if  the  associations  had  not  interfered  with  those  who  sold 
him;  but  it  is  not  denied  that,  as  a  result  of  the  combination,  he  was 
individually  a  large  gainer.  True,  he  avers  that,  if  defendants  had 
gone  no  further  than  to  refuse  to  sell  themselves,  he  would  have  made 
a  great  deal  more  money — that  is,  he  did  not  make  as  large  a  sum  as 
he  would  have  made  if  they  had  not  dissuaded  others,  not  members 
of  the  association,  from  selling  to  him;  but  that,  by  the  fact  of  the 
combination  and  strike,  he  was  richer  at  the  end  than  when  they  com- 
menced, is  not  questioned. 

We  have,  then,  these  facts,  somewhat  peculiar  in  the  administra- 
tion of  justice:  A  plaintiff  suing  and  recovering  damages  for  an  al- 
leged unlawful  act,  of  which  he  himself,  in  so  far  as  he  aided  the 
workmen's  combination,  is  also  guilty ;  and  both  acts  springing  from 
the  same  source,  a  contest  between  employers  and  employed  as  to 
the  price  of  daily  wages ;  and  then  the  further  fact,  that  this  contest, 
instead  of  damaging  him,  resulted  largely  to  his  profit. 

We  assume,  so  far  as  concerns  defendants,  if  their  agreement  was 
unlawful,  or,  if  lawful,  it  was  carried  out  by  unlawful  acts,  to  the 
damage  of  plaintiff,  the  judgment  should  stand.  All  the  authorities 
of  this  state  go  to  show  that,  while  the  act  of  an  individual  may  not 
be  unlawful,  yet  the  same  act,  when  committed  by  a  combination  of 
two  or  more,  may  be  unlawful,  and  therefore  be  actionable.  A  dictum 
of  Lord  Denman,  in  R.  v.  Seward,  1  A.  &  E.  711,  gives  this  definition 
of  a  conspiracy:  "It  is  either  a  combination  to  procure  an  unlawful 
object,  or  to  procure  a  lawful  object  by  unlawful  means."  This  leaves 
still  undetermined  the  meaning  to  be  given  the  words  "lawful"  and 
"unlawful,"  in  their  connection  in  the  antithesis.  An  agreement  may 
be  unlawful  in  the  sense  that  the  law  will  not  aid  in  its  enforcement, 
or  recognize  it  as  binding  upon  those  who  have  made  it,  yet  not  unlaw- 
ful in  the  sense  that  it  will  punish  those  who  are  parties  to  it,  either 
criminally  or  by  a  verdict  in  damages.  Lord  Denman  is  reported  to 
have  said  afterwards  in  R.  v.  Heck,  9  A.  &  E.  690,  that  his  definition 
was  not  very  correct.     See  note  to  Wharton's  Criminal  Law,  §  3291. 

It  is  conceded,  however,  in  the  case  in  hand,  any  one  of  defendants, 
acting  for  himself,  had  a  right  to  refuse  to  sell  to  those  favoring  the 
eight-hour  day,  and  so,  acting  for  himself,  had  the  righl  to  dissuade 
others  from  selling.  If  the  act  were  unlawful  at  all,  it  was  because 
of  the  combination  of  a  number.  Gibson,  J.,  in  Com.  v.  Carlisle, 
Brightly'fl  R.  39,  says:  "Where  the  act  is  lawful  for  the  individual, 
il  can  be  the  subject  of  conspiracy,  when  done  in  concert,  only  where 
there  is  a  direct  intentii  tl  that  injury  shall  resull  from  it,  or  where 
the  object  is  to  benefit  the  conspirators  to  the  prejudice  of  the  public* 


Sec.  2)  SUFFICIENCY   OF   THE   ACT.  215 

or  the  oppression  of  individuals,  and  where  such  prejudice  or  oppres- 
sion is  the  natural  and  necessary  consequence." 

In  the  same  case  it  is  held:  "A  combination  is  criminal,  wherever 
the  act  to  be  done  has  a  necessary  tendency  to  prejudice  the  public,  or 
to  oppress  individuals  by  unjustly  subjecting  them  to  the  power  of  the 
confederacy,  and  giving  effect  to  the  purposes  of  the  latter,  whether 
of  extortion  or  mischief.  According  to  this  view  of  the  law,  a  combi- 
nation of  employers  to  depress  the  wages  of  journeymen  below  what 
they  would  be  if  there  was  no  recurrence  to  artificial  means  on  ei- 
ther side  is  criminal."  This  case  puts  the  law  against  the  combination 
in  as  strong  terms,  if  not  stronger,  than  any  others  of  our  own  state. 
The  significant  qualification  of  the  general  principle,  as  mentioned  in 
the  last  three  lines,  will  be  noticed:  "If  there  was  no  recurrence  to 
artificial  means  on  either  side."  The  prejudice  to  the  public  is  the  use 
of  artificial  means  to  affect  prices  whereby  the  public  suffers.  A  com- 
bination of  stockbrokers  to  corner  a  stock,  of  farmers  to  raise  the 
price  of  grain,  of  manufacturers  to  raise  the  price  of  their  product,  of 
employers  to  reduce  the  price  of  labor,  of  workmen  to  raise  the  price, 
were  at  the  date  of  that  decision,  at  common  law,  all  conspiracies. 
The  fixed  theory  of  courts  and  legislators  then  was  that  the  price  of 
everything  ought  to  be,  and  in  the  absence  of  combination  necessarily 
would  be,  regulated  by  supply  and  demand.  The  first  to  deny  the  jus- 
tice of  this  theory,  and  to  break  away  from  it,  was  labor,  and  this  was 
soon  followed  by  the  legislation  already  noticed,  relieving  workmen 
from  the  penalties  of  what,  for  more  than  a  century,  had  been  de- 
clared unlawful  combinations  or  conspiracies.  Wages,  it  was  argued, 
should  be  fixed  by  the  fair  proportion  labor  had  contributed  in  produc- 
tion. The  market  price,  determined  by  supply  and  demand,  might  or 
might  not  be  fair  wages,  often  was  not,  and  as  long  as  workmen  were 
not  free  by  combination  to  insist  on  their  right  to  fair  wages,  oppres- 
sion by  capital,  or,  which  is  the  same  thing,  by  their  employers,  fol- 
lowed. It  is  not  our  business  to  pass  on  the  soundness  of  the  theories 
which  prompt  the  enactment  of  statutes.  One  thing,  however,  is 
clear:  The  moment  the  Legislature  relieved  one  and  by  far  the  larger 
number  of  the  citizens  of  the  commonwealth  from  the  common-law 
prohibitions  against  combinations  to  raise  the  price  of  labor  and  by  a 
combination  the  price  was  raised,  down  went  the  foundation  on  which 
common-law  conspiracy  was  based  as  to  that  particular  subject.  Be- 
fore any  legislation  on  the  question,  it  was  held  that  a  combination  of 
workmen  to  raise  the  price  of  labor,  or  of  employers  to  depress  it, 
was  unlawful,  because  such  combination  interfered  with  the  price 
which  would  otherwise  be  regulated  by  supply  and  demand.  This 
interference  was  in  restraint  of  trade  or  business,  and  prejudicial  to 
the  public  at  large.  Such  combination  made  an  artificial  price. 
Workmen,  by  reason  of  the  combination,  were  not  willing  to  work 
for  what  otherwise  they  would  accept.  Employers  would  not  pay 
what  otherwise  they  would  consider  fair  wages.     Supply  and  demand 


216  THE   CRIMINAL  ACT.  (Cll.   6 

consist  in  the  amount  of  labor  for  sale  and  the  needs  of  the  employ- 
er who  buys.  If  more  men  offer  to  sell  labor  than  are  needed,  the 
price  goes  down,  and  the  employer  buys  cheap.  If  fewer  than  required 
offer,  the  price  goes  up,  and  he  buys  dear.  As  every  seller  and  buyer 
is  free  to  bargain  for  himself,  the  price  is  regulated  solely  by  supply 
and  demand.  On  this  reasoning  was  founded  common-law  conspiracy 
in  this  class  of  cases.  But  in  this  case  the  workmen,  without  regard 
to  the  supply  of  labor  or  the  demand  for  it,  agree  upon  what  in  their 
judgment  is  a  fair  price,  and  then  combine  in  a  demand  for  payment 
of  that  price;  when  refused,  in  pursuance  of  the  combination,  they  quit 
work,  and  agree  not  to  work  until  the  demand  is  conceded;  further, 
they  agree  by  lawful  means  to  prevent  all  others,  not  members  of  the 
combination,  from  going  to  work  until  the  employers  agree  to  pay 
the  price  fixed  by  the  combination ;  and  this,  as  long  as  no  force  was 
used,  or  menaces  to  person  or  property,  they  had  a  lawful  right  to  do, 
and  so  far  as  is  known  to  us  the  price  demanded  by  them  may  have  been 
a  fair  one.  But  it  is  nonsense  to  say  that  this  was  a  price  fixed  by  sup- 
ply and  demand.  It  was  fixed  by  a  combination  of  workmen  on  their 
combined  judgment  as  to  its  fairness;  and,  that  the  supply  might 
not  lessen  it,  they  combined  to  prevent  all  other  workmen  in  the  mar- 
ket from  accepting  less.  Then  followed  the  combination  of  employers, 
not  to  lower  the  wages  theretofore  paid,  but  to  resist  the  demand  of  a 
combination  for  an  advance;  not  to  resist  an  advance  which  would 
naturally  follow  a  limited  supply  in  the  market,  for  the  supply,  so  far 
as  the  workmen  belonging  to  the  combination  was  concerned,  was  by 
combination  wholly  withdrawn,  and  as  to  workmen  other  than  mem- 
bers, to  the  extent  of  their  power,  they  kept  them  out  of  the  market. 
By  artificial  means  the  market 'supply  was  almost  wholly  cut  off.  The 
combination  of  the  employers,  then,  was  not  to  interfere  with  the 
price  of  labor  as  determined  by  the  common-law  theory,  but  to  defend 
themselves  against  a  demand  made  altogether  regardless  of  the  price 
as  regulated  by  the  supply.  The  element  of  an  unlawful  combination 
to  restrain  trade  because  of  greed  of  profit  to  themselves,  or  of  malice 
toward  plaintiff  or  others,  is  lacking,  and  this  is  the  essential  element 
on  which  are  founded  all  decisions  as  to  common-law  conspiracy  in 
this  class  of  cases.  And  however  unchanged  may  be  the  law  as  to 
combinations  of  employers  to  interfere  with  wages,  where  such  combi- 
nations take  the  initiative,  they  certainly  do  not  depress  the  market 
price  when  they  combine  to  resist  a  combination  to  artificially  advance 
price. 
"The  reason  of  the  law  is  the  life  of  the  law,"  and,  as  given  in  the 

cited   by   appellee,   irresistibly   impels   to  the  conclusion   that    the 
combination  here  was  not  unlawful;   a  conclusion  whieh  is  clearly  in- 
dicated in  Com.  v.  Carlisle,  supra,  that  it  would  not  he  unlawful,  if 
there  was  first  recurrence  to  artificial  means  by  workmen  to  raise  the 
'•t  price.    Here  the  first  step  provocative  of  a  combination  by  the 

employers   was  an   attempt   by   lawful,   artificial   means   on   part  of  the 


Sec.  2)  SUFFICIENCY   OF   THE   ACT.  217 

workmen  to  control  the  supply  of  labor,  preparatory  to  a  demand  for 
an  advance. 

Nor  does  the  fact  that  the  appellee  was  not  a  workman,  or  a  mem- 
ber of  any  of  the  unions  of  workmen,  put  him  in  any  better  attitude 
than  if  he  were.  He  undertook  for  his  own  profit  to  aid  the  cause  of 
the  workmen.  His  right  to  do  so  was  unquestionable.  But,  if  the  em- 
ployers by  a  lawful  combination  could  limit  his  ability  so  to  do,  they 
did  not  make  themselves  answerable  in  damages  to  him  for  the  conse- 
quences of  a  lawful  act. 

The  case  of  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  173,  8 
Am.  Rep.  159,  is  not  in  point.  It  was  the  attempt  to  enforce  the  collec- 
tion of  a  draft  given  by  one  member  of  a  combination  formed  to  raise 
the  price  of  coal  to  another,  in  consideration  of  certain  stipulations 
in  the  agreement.  It  was  held  that  the  combination,  being  in  restraint 
of  trade,  was  unlawful,  and,  as  the  draft  was  given  in  pursuance  of 
the  unlawful  contract,  it  also  was  tainted  with  the  illegality,  and  there 
could  be  no  recovery. 

But,  if  the  agreement  itself  were  not  unlawful,  were  the  methods  to 
carry  it  out  unlawful  ?  If  the  employers'  combination  here  had  used  il- 
legal methods  or  means  to  prevent  other  dealers  from  selling  supplies  to 
plaintiff,  the  conspiracy  might  still  have  been  found  to  exist.  The 
threats  referred  to,  although  what  are  usually  termed  threats,  were  not 
so  in  a  legal  sense.  To  have  said  they  would  inflict  bodily  harm  on  other 
dealers  or  villify  them  in  the  newspapers,  or  bring  on  them  social  ostra- 
cism, or  similar  declarations,  these  the  law  would  have  deemed  threats, 
for  they  may  deter  a  man  of  ordinary  courage  from  the  prosecution  of 
his  business  in  a  way  which  accords  with  his  own  notions ;  but  to  say, 
and  even  that  is  inferential  from  the  correspondence,  that  if  they  con- 
tinued to  sell  to  plaintiff  the  members  of  the  association  would  not 
buy  from  them,  is  not  a  threat.  It  does  not  interfere  with  the  dealer's 
free  choice.  It  may  have  prompted  him  to  a  somewhat  sordid  calcu- 
lation. He  may  have  considered  which  custom  was  most  profitable, 
and  have  acted  accordingly ;  but  this  was  not  such  coercion  and  threats 
as  constituted  the  acts  of  the  combination  unlawful.  Rodgers  v.  Duff, 
13  Moore,  P.  C.  209;  Bowen  v.  Matheson,  14  Allen  (Mass.)  499; 
Bohn  Mfg.  Co.  v.  Hollis  et  al.,  54  Minn.  223,  55  N.  W.  1119,  21  L.  R. 
A.  337,  40  Am.  St.  Rep.  319. 

On  the  main  question  the  case  last  cited  goes  further  than  we  are 
called  upon  to  go,  as  yet,  in  this  state.  It  holds  that  what  is  not  un- 
lawful when  done  by  an  individual  cannot  be  unlawful  when  done  by 
many,  and  therefore  the  combination  not  to  deal  with  those  who  broke 
the  rules  of  the  association  was  not  a  conspiracy.  For  this  a  number  of 
cases  from  other  states,  as  well  as  from  England,  are  cited.  But  the  law 
in  this  state  has  heretofore  been  determined  otherwise  from  a  very  early 
day  by  an  unbroken  line  of  decisions  which  here  call  for  no  qualifica- 
tion; for,  so  far  as  concerns  the  facts  of  this  case,  the  Legislature 
has  so  changed  the  law  as  to  render  these  decisions  inapplicable.    We 


218  THE   CRIMINAL  ACT.  (Ch.   6 

concede,  however,  that  the  decisions  of  other  courts  are  by  no  means 
uniform.  Mr.  Wright,  in  his  work  on  the  Law  of  Criminal  Conspir- 
acies and  Agreements  (London,  1873),  says:  "It  is  conceived  that, 
on  a  review  of  all  the  decisions,  there  is  a  great  preponderance  of  au- 
thority in  favor  of  the  proposition  that,  as  a  rule,  an  agreement  or 
combination  is  not  criminal,  unless  it  be  for  acts  or  omissions,  whether 
as  ends  or  means,  which  would  be  criminal  apart  from  agreement.' 

Logically,  the  same  rule  would  apply,  as  was  held  in  Bohn  Mfg.  Co. 
v.  Hollis,  to  combinations  which,  although  not  criminal,  are  alleged  to 
be  unlawful. 

But  without  regard  to  whether  the  general  rule  be  settled  by  the 
weight  of  authority,  as  claimed  by  the  appellants,  we  hold  here  that 
this  combination  was  not  unlawful,  because:  (1)  It  was  not  made  to 
lower  the  price  of  wages  as  regulated  by  the  supply  and  demand,  but 
to  resist  an  artificial  price  made  by  a  combination  which  by  statute  was 
not  unlawful.  (2)  The  methods  adopted  to  further  the  objects  of  the 
combination  were  not  unlawful. 

Another  point  has  been  most  earnestly  pressed  upon  our  considera- 
tion by  counsel  for  appellants.  It  is  argued  that,  under  our  Declara- 
tion of  Rights,  either  the  acts  of  assembly  of  1869,  1872,  1876,  and 
1891,  exempting  employes  from  the  penalties  of  unlawful  combina- 
tion to  fix  the  price  of  labor  are  void,  because,  by  their  terms,  they  em- 
brace only  a  particular  class  of  citizens  of  the  commonwealth,  or  their 
scope  must  be  enlarged  beyond  the  express  terms  of  these  acts,  so  as 
to  include  within  their  protection  all  those  interested  in  the  same  sub- 
ject of  legislation.  It  is  argued  that  it  is  not  within  the  power  of  the 
Legislature  to  declare  some  citizens  innocent  of  any  offense  against 
the  law  for  the  very  same  act  which,  when  committed  by  some  others 
in  the  same  business,  the  law  will  still  hold  to  be  criminal ;  that  what 
the  statute  declares  is  not  conspiracy  in  one  case  cannot,  under  the 
law,  be  conspiracy  in  the  other;  and  therefore,  in  every  contest  of 
this  kind  between  workmen  and  employers,  the  statute,  if  not  void, 
must  at  least  be  held  to  operate  equally  to  the  exemption  of  all  citi- 
zens interested  in  the  subject  affected  by  the  combination.  If  there 
be  nothing  criminal  in  a  combination  to  artificially  raise  wages,  there 
can  be  nothing  criminal  in  an  employers'  combination  to  resist  the  ad- 
vance or  to  artificially  depress  them. 

This  question  is  not  in  the  case,  in  the  view  we  have  taken  of  the 
facts.  We  are  at  all  times  averse  to  passing  on  questions  the  answers 
to  which  are  not  necessary  to  a  decision  of  the  case  immediately  before 
us ;  much  less  are  we  inclined  to  discuss  and  decide  questions  involv- 
ing the  constitutional  power  of  a  co-ordinate  branch  of  the  govern- 
ment  For  this  reason  we  refrain  from  a  consideration  of  the  able 
argument  of  counsel  for  appellant  on  this  point. 

The  refu  al  of  the  court  below  to  affirm  appellant's  seventh  prayer 
for  instructions,  that  "under  all  the  evidence  the  verdict  must  be  for 
defendants,"  was  error,  and,  being  here  a  signed  for  error,  the  appeal 
is  sustained,  and  judgment  rever  ed. 


Sec.  2)  SUFFICIENCY    OF   THE    ACT.  219 

STATE  v.  STEWART. 
(Supreme  Court  of  Vermont,  1887.     50  Vt.  273,  9  Atl.  559,  50  Am.  Rep.  710.) 

Indictment  for  a  conspiracy  to  hinder  and  prevent  the  Ryegate 
Granite  Works,  a  corporation  doing  business  at  Ryegate,  from  em-  )s^- 
ploying  certain  granite  cutters,  and  for  hindering  and  deterring  cer- 
tain laborers  from  working  for  the  said  corporation.  Heard,  June 
term,  1885,  Ross,  J.,  presiding,  upon  respondents'  demurrer  and  mo- 
tion to  quash  the  indictment.  The  demurrer  was  overruled  pro  forma, 
and  the  motion  to  quash  denied,  to  which  the  respondents  excepted.1 

Powers,  J.  Although  authorities  can  be  found  that  lay  down 
the  rule  that  felonies  and  misdemeanors,  or  different  felonies,  can- 
not be  joined  in  the  same  indictment,  still  the  rule  in  this  and  most  of 
the  states  is  otherwise. 

It  is  always  and  everywhere  permissible  for  the  pleader  to  set 
forth  the  offense  he  seeks  to  prosecute  in  all  the  various  ways  neces- 
sary to  meet  the  possible  phases  of  evidence  that  may  appear  at  the 
trial.  If  the  counts  cover  the  same  transaction,  though  involving  of- 
fenses of  different  grade,  the  court  has  it  in  its  power  to  preserve  all 
rights  of  defense  intact.  Commonwealth  v.  McLaughlin,  12  Cush. 
(Mass.)  612;  State  v.  Lincoln,  49  N.  H.  464;  State  v.  Smalley,  50 
Vt.  736;  State  v.  Thornton,  56  Vt.  35;  Rex  v.  Ferguson,  2  Stark, 
489.  Moreover,  the  motion  to  quash  is  addressed  to  the  discretion  of 
the  court,  and  its  refusal  is  not  the  subject  of  revision  here.  Common- 
wealth v.  Eastman,  1  Cush.  (Mass.)  189,  48  Am.  Dec.  596;  Com- 
monwealth v.  Ryan,  9  Gray  (Mass.)  137;  1  Wharton,  Cr.  Law,  §  519. 

The  respondents'  counsel  argues  that  the  first  and  second  counts 
do  not  cover  the  offense  of  criminal  conspiracy  at  common  law.  But 
we  think,  upon  a  careful  examination  of  the  English  and  American 
cases  cited  in  argument,  and  we  suspect  that  none  have  been  over- 
looked on  either  side,  that  it  is  clear  to  a  demonstration  that  a  com- 
bination of  the  character  set  forth  in  these  counts  was  a  conspiracy  at 
the  common  law,  and,  further,  that  the  subject-matter  of  the  offense 
being  the  same  in  this  country  as  in  England,  namely,  an  interference 
with  the  property  rights  of  third  persons,  and  a  restraint  upon  the 
lawful  prosecution  of  their  industries,  as  well  as  an  unlawful  control 
over  the  free  use  and  employment  by  workmen  of  their  own  personal 
skill  and  labor,  at  such  times,  for  such  prices,  and  for  such  persons 
as  they  please,  the  common  law  of  England  is  "applicable  to  our  local 
situation  and  circumstances"  in  this  behalf,  and  is  therefore  the  com- 
mon law  of  Vermont. 

In  England  and  here  it  is  lawful,  and,  it  may  be  added,  commend- 
able, for  any  body  of  men  to  associate  themselves  together  for  the 
purpose  of  bettering  their  condition  in  any  respect,  financial  or  social. 
The  very  genius  of  free  institutions  invites  them  to  higher  levels  and 

i  The  indictment  and  the  arguments  of  counsel  are  omitted. 


220  THE   CRIMINAL  ACT.  (Ch.   6 

better  fortunes.  They  may  dictate  their  own  wages,  fraternize  with 
their  own  associates,  choose  their  own  employers,  and  serve  man  and 
mammon  according  to  the  dictates  of  their  own  conscience. 

But,  while  the  law  accords  this  liberty  to  one,  it  accords  a  like 
liberty  to  every  other  one;  and  all  are  bound  to  so  use  and  enjoy 
their  own  liberties  and  privileges  as  not  to  interfere  with  those  of 
their  neighbors. 

All  the  legislation  in  England  and  America  has  been  progressively 
in  the  direction  of  according  to  laborers  the  enjoyment  of  equal  rights 
with  others. 

The  early  English  statutes,  beginning  with  the  middle  of  the  four- 
teenth century,  are  to  be  read  in  the  light  of  the  civilization  of  that 
day,  and  their  provisions,  to  us  of  the  nineteenth  century  harsh,  il- 
liberal, and  tyrannical,  were  but  the  reflex  of  the  prevalent  notions  of 
class  distinctions  that  shaped  and  guided  the  social  and  political  polity 
of  those  days. 

From  time  to  time,  however,  down  to  1875,  this  legislation  has  been 
liberalized  and  Christianized;  and  to-day  in  England,  as  here,  work- 
men stand  upon  the  same  broad  level  of  equality  before  the  law  with 
all  other  vocations,  professions,  or  callings  whatsoever,  respecting  the 
disposition  of  their  labor  and  the  advancement  of  their  associated  in- 
terests. 

There,  as  here,  it  is  unlawful  for  employers  wrongfully  to  coerce, 
intimidate,  or  hinder  the  free  choice  of  workmen  in  the  disposal  of 
their  time  and  talents.  There,  as  here,  it  is  unlawful  for  workmen 
wrongfully  to  coerce,  intimidate,  or  hinder  employers  in  the  selection 
of  such  workmen  as  they  choose  to  employ.  There,  as  here,  no  em- 
ployer can  say  to  a  workman  he  must  not  work  for  another  employer, 
nor  can  a  workman  say  to  an  employer  he  cannot  employ  the  service 
of  another  workman. 

By  the  law  of  the  land,  these  respondents  have  the  most  unqualified 
right  to  work  for  whom  they  please,  and  at  such  prices  as  they  please. 
By  the  law  of  the  land,  O'Rourke  and  Goodfellow  have  the  same 
right.  By  the  same  law,  the  Ryegate  Granite  Company  has  the  right 
to  employ  the  respondents  or  O'Rourke  on  such  terms  as  may  be 
mutual!  I   upon,  without  let,  hindrance,  or  dictation   from  any 

or  body  of  men  whatever. 
Suppose    the    members   of    a   bar   association    in    Caledonia    county 
should  combine  and   declare  that  the  respondents  should  employ  no 
attorney,  not  a  member  of  such  association,  to  assisl   them   in   their 
e  in  this  case,  under  the  penalty  of  being  dubbed  a  "scab,"  and 
g  his  name  paraded  in  the  public  press  as  unworthy  of  recogni- 
tion among  his  brethren,  and  himself  broughl  int..  hatred,  envy,  and 

ptj    would  th  tldents  look  Upon  this  as  an  innocent  intcr- 

ling  with  their  rights  under  the  law?    The  proposition  lias  only 
t0  |  ,]  to  di  clo  i    il    utter  inconsistency  with  every  principle  of 

justice  that  pennca:  v  under  which  we  li\<-. 


Sec.  2)  SUFFICIENCY   OF   THE    ACT.  221 

If  such  conspiracies  are  to  be  tolerated  as  innocent,  then  every  farm- 
er in  Vermont,  now  resting  in  the  confidence  that  he  may  employ  such 
assistance  in  carrying  on  his  farm  as  he  thinks  he  can  afford  to  hire, 
is  exposed  to  the  operation  of  some  secret  code  of  law,  in  the  fram- 
ing of  which  he  had  no  voice,  and  upon  the  terms  of  which  he  has  no 
veto,  and  every  manufacturer  is  handicapped  by  a  system  that  por- 
tends certain  destruction  to  his  industry.  If  our  agricultural  and 
manufacturing  industries  are  sleeping  upon  the  fires  of  a  volcano,  lia- 
ble to  eruption  at  any  moment,  it  is  high  time  our  people  knew  it. 

But  happily  such  is  not  the  law,  and  among  English-speaking  peo- 
ple never  has  been  the  law.    The  Reports,  English  and  American,  are 
full  of  illustrations  of  the  doctrine  that  a  combination    of  two  or  more 
persons  to  effect  an  illegal  purpose,  either  by  legal  or  illegal  means, 
whether  such  purpose  be  illegal  at  common  law  or  by  statute,  or  to    ' 
effect  a  legal  purpose  by  illegal  means,  whether  such  means  be  illegal  J 
at  common  law  or  by  statute,  is  a  common-law  conspiracy.     Such  com-  / 
binations  are  equally  illegal,  whether  they  promote  objects  or  adopt 
means  that  are  per  se  indictable,  or  promote  objects  or  adopt  means 
that  are  per  se  oppressive,  immoral,  or  wrongfully  prejudicial  to  the  \ 
rights  of  others. 

If  they  seek  to  restrain  trade,  or  tend  to  the  destruction  of  the 
material  prosperity  of  the  country,  they  work  injury  to  the  whole 
public. 

These  propositions  are  the  clear  deduction  of  the  cases  cited  in  ar- 
gument, and  breathe  a  spirit  of  equality  and  justice  that  must  commend 
itself  to  every  intelligent  mind. 

Counsel  have  cited  to  us  no  case  in  which  it  has  been  ruled  that 
this  crime  of  conspiracy  does  not  exist  at  the  common  law:  We  are 
referred  to  Mr.  Wright's  clever  monograph  upon  Criminal  Conspira- 
cies, wherein  the  author,  though  not  denying  that  conspiracies  to  in- 
jure industries  and  against  the  free  exercise  of  one's  calling  accord- 
ing to  his  own  choice  were  held  to  be  criminal  at  the  common  law, 
still  attempts  to  throw  doubt  upon  the  basis  upon  which  the  doctrine 
rests. 

But  when,  in  1  Hawkins'  Pleas  of  the  Crown,  c.  27,  §  2  (a  book 
of  great  authority),  2  Russell  on  Crimes,  674,  it  is  laid  down  "that 
all  conspiracies  whatever,  wrongfully  to  prejudice  a  third  person,  are 
highly  criminal  at  common  law,"  and  in  2  Wharton's  Criminal  Law, 
§  2322,  it  is  said  that  "a  combination  is  a  conspiracy  in  law,  whenever 
the  act  to  be  done  has  a  necessary  tendency  to  prejudice  the  public 
or  oppress  individuals,  by  unjustly  subjecting  them  to  the  power  of 
the  confederates,  and  giving  effect  to  the  purposes  of  the  latter,  wheth- 
er of  extortion  or  mischief,"  and  the  same  proposition,  in  one  form  of 
expression  and  another,  is  laid  down  in  2  Bishop's  Criminal  Law,  § 
172,  and  in  Desty's  Criminal  Law,  §  11,  and  in  3  Chitty's  Criminal 
Law,  1138,  and  in  Archbold's  Crim.  Prac.  &  PI.  1830,  and  it  was  said 


222  THE   CRIMINAL   ACT.  (Ch.   & 

by  Denman,  C.  J.,  in  Queen  v.  Kenrick,  5  Q.  B.  49 :  "It  was  contended, 
in  the  first  place,  that  the  third  count  was  bad  by  reason  of  uncertain- 
ty, as  giving  no  notice  of  the  offense  charged.  The  whole  law  of  con- 
spiracy, as  it  has  been  administered  at  least  for  the  last  hundred  years, 
has  been  thus  called  in  question;  for  we  have  sufficient  proof  that 
during  that  period  any  combination  to  prejudice  another  unlawfully 
has  been  considered  as  constituting  the  offense  so  called.  The_offense 
^asbeenjieldto  consist  in  the  conspiracy,  andnot  inJhe_actsj^uiuniL- 
_  tecT  for  carrving^liJjito^^ectTandtrie  chargejias  been  held  to  be 
__sufficiently  made  in  gejieral^terrns  descnbJng___aji_urilajvjuj^conspiracy 
to  effecLaJbaiLpiurpose" — andBaron  Rolfe,  in  Reg.  v.  Selby,  5  Cox, 
Crim.  Cas.  495,  and  Tindal,  C.  J.,  in  Reg.  v.  Harris,  1  Car.  &  M. 
661,  and  Crompton,  J.,  in  Hilton  v.  Eckersley,  6  E.  &.  B.  47,  and 
Grove,  J.,  in  Rex  v.  Mawbey,  6  T.  R.  619,  and  Lord  Mansfield,  in 
Rex  v.  Eccles,  1  Leach,  Crown  Cas.  274,  and  Hill,  J.,  in  Walsby 
v.  Anley,  3  E.  &  E.  516,  and  Campbell,  C.  J.,  in  Reg.  v.  Rowlands, 
17  Adol.  &  El.  670,  and  Baron  Bramwcll,  in  Reg.  v.  Druitt,  10  Cox, 
Crim.  Cas.  592,  and  Brett,  J.,  in  Reg.  v.  Bunn,  12  Cox,  Crim.  Cas. 
316,  and  Malins^V.  C„  in  Springhead  Co.  v.  Riley,  L.  R.  6  Eq.  551, 
and  Coleridge,  C.  "in  Mogul  S.  S.  Co.  v.  McGregor,  L.  R.  15  Q. 
B.  Div.  476,  and  Shaw,  C.  J.,  in  Commonwealth  v.  Hunt,  4  Mete. 
(Mass.)  Ill,  128,  38  Am.  Dec.  346,  and  Caton,  C.  J.,  in  Smith  v. 
People,  25  111.  17,  76  Am.  Dec.  780,  and  Gibson,  C.  J.,  in  Common- 
wealth v.  Carlisle,  Journal  Jurisprudence,  225,  and  Chapman,  C.  J., 
in  Carew  v.  Rutherford,  106  Mass.  1,  8  Am.  Rep.  287,  have  all  added 
their  indorsement  of  the  doctrine  advanced  as  early  as  the  work  of 
Hawkins,  supra:  it  is  manifest  that  we  are  compelled  to  forsake  the 
literature  of  doubt,  and  to  cleave  unto  that  of  authority.  See,  also, 
Rex  v.  Ferguson,  2  Starkie,  N.  P.  489;  Rex  v.  Bykerdyke,  1  M. 
&  Rob.  179;  People  v.  Fisher,  14  Wend.  (N.  Y.)  9;  State  v.  Don- 
aldson, 32  N.  J.  Law,  151,  90  Am.  Dec.  649;  Snow  v.  Wheeler, 
113  Mass.  186;  State  v.  Noyes,  25  Vt.  415;  State  v.  Burnham,  15 
N.  H.  396;  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  173, 
8  Am.  Rep.  159. 

Vice  Chancellor  Malins,  in  the  case  cited,  supra,  states  the  law  of 
the  subject  in  brief  but  intelligible  words:  "Every  man  is  at  liberty 
to  enter  into  a  combination  to  keep  up  the  price  of  wages;  but.  if 
he  enters  into  a  combination  for  the  object  of  interfering  with  the 
perfect  freedom  of  action  of  another  man,  it  is  an  offense,  not  only 
at  common  law,  but  under  St.  6  Geo.  IV,  c.  129." 

The  principle  upon  which  the  cases,  English  and  American,  proceed 
is  that   every   man    lias  the   right  to  employ   his   talents,   industry,   and 

capital  as  he  pleases,  free  from  the  dictation  of  others;  and.  if  two  or 
more  persons  combine  to  coerce  his  choice  in  this  behalf,  it  is  ;i  criminal 
CMi,  piracy.  The  labor  and  skill  <>f  the  workman,  he  it  of  high  or  low 
degree,  the  plant  of  tip-  manufacturer,  the  equipment  of  the  fanner, 


Sec.  2)  SUFFICIENCY    OF  THE   ACT.  223 

the  investments  of  commerce,  are  all  in  equal  sense  property.  If  men 
by  overt  acts  of  violence  destroy  either,  they  are  guilty  of  crime.  The 
anathemas  of  a  secret  organization  of  men,  combined  for  the  purpose 
of  -controlling  the  industry  of  others  by  a  species  of  intimidation  that 
works  upon  the  mind  rather  than  the  body,  are  quite  as  dangerous, 
and  generally  altogether  more  effective,  than  acts  of  actual  violence; 
and,  while  such  conspiracies  may  give  to  the  individual  directly  affect- 
ed by  them  a  private  right  of  action  for  damages,  they  at  the  same 
time  lay  a  basis  for  an  indictment  on  the  ground  that  the  state  itself 
is  directly  concerned  in  the  promotion  of  all  legitimate  industries  and 
the  development  of  all  its  resources,  and  owes  the  duty  of  protection 
to  its  citizens  engaged  in  the  exercise  of  their  callings.  The  good 
order,  peace,  and  general  prosperity  of  the  state  are  directly  involved 
in  the  question. 

In  the  case  at  bar  the  third  and  fourth  counts  set  forth  more  par- 
ticularly the  methods  adopted  by  the  respondents  to  interfere  with  the 
prosecution  of  its  business  by  the  Ryegate  Granite  Works.  They 
charge  the  respondents  with  an  intent  to  prevent  the  prosecution  of 
the  work  of  that  company  by  threatening  O'Rourke,  Goodfellow,  and 
others,  that  the  Ryegate  Granite  Works  were  "scab  shops,"  and  all 
workmen  therein  were  "scabs,"  and  their  names  would  be  published 
in  the  "scab"  list  in  the  Granite  Cutter's  Journal,  and  that  they  would 
be  shunned,  and  not  allowed  to  work  with  any  other  granite  cutters, 
and  would  be  disgraced  in  the  craft,  etc.,  by  all  of  which  O'Rourke. 
Goodfellow,  and  others  were  frightened  and  driven  away  from  said 
shops. 

The  exposure  of  a  legitimate  business  to  the  control  of  an  associa- 
tion that  can  order  away  its  employes  and  frighten  away  others  that 
it  may  seek  to  employ,  and  thus  be  compelled  to  cease  the  further 
prosecution  of  its  work,  is  a  condition  of  things  utterly  at  war  with 
every  principle  of  justice  and  every  safeguard  of  protection  that  citi- 
zens under  our  system  of  government  are  entitled  to  enjoy.  The  direct 
tendency  of  such  intimidation  is  to  establish  over  labor  and  over  all 
industries,  a  control  that  is  unknown  to  the  law,  and  that  is  exerted 
by  a  secret  association  of  conspirators,  that  is  actuated  solely  by  per- 
sonal considerations,  and  whose  plans,  carried  into  execution,  usually 
result  in  violence  and  the  destruction  of  property. 

That  evils  exist  in  the  relations  of  capital  and  labor,  and  that  work- 
men have  grievances  that  oftentimes  call  for  relief,  are  facts  that  ob- 
serving men  cannot  deny.  With  such  questions  we,  as  a  court,  have 
no  function  to  discharge  further  than  to  say  that  the  remedy  cannot 
be  found  in  the  boycott. 

We  do  not  deem  it  necessary  to  extend  this  discussion — already 
too  long  drawn  out — in  following  seriatim  the  numerous  objections 
taken  in  the  able  and  elaborate  brief  of  the  respondents  to  the  differ- 
ent counts  of  this  indictment.  The  general  scope  of  the  views  express- 
ed covers  the  whole  ground,  we  think;    and  the  result  is  the  judg- 


224  THE   CRIMINAL   ACT.  (Ch.   6 

ment  of  the  county  court,  overruling  the  motion  to  quash,  and  overrul- 
ing the  demurrer,  and  adjudging  the  indictment  to  be  sufficient,  is 
affirmed;    and  the  cause  is  remanded,  to  be  further  proceeded  with.2 


SECTION   3.— AUTHORIZED  ACTS. 
I.  Acts  in  Furtherance  of  Public  Justice. 


This  kind  of  occision  of  a  man  according  to  the  laws  of  the  kingdom 
and  in  execution  thereof  ought  not  to  be  numbered  in  the  rank  of 
crimes,  for  it  is  the  execution  of  justice,  without  which  there  were 
no  living,  and  murders,  burglaries,  and  all  capital  crimes  would  be  as 
frequent  and  common  as  petit  trespasses  and  batteries.  The  taking 
away  of  the  life,  therefore,  of  the  malefactor  according  to  law  by 
sentence  of  the  judge,  and  by  the  sheriff  or  other  minister  of  justice 
pursuant  to  such  sentence,  is  not  only  an  act  of  necessity,  but  of  duty, 
not  only  excusable,  but  commendable,  when  the  law  requires  it. 
*  *  *  The  deliberate,  uncompelled,  extrajudicial  killing  of  a  per- 
son attaint  of  treason,  felony,  or  murder,  or  in  a  praemunire;  tho'  upon 
the  score  of  their  being  such,  is  murder. 

Therefore  it  is  necessary  (1)  that  he  that  gives  sentence  of  death 
against  a  malefactor  be  authorized  by  lawful  commission  or  charter, 
or  by  prescription  to  have  cognizance  of  the  cause;  (2)  that  he  that 
executes  such  sentence  be  authorized  to  make  such  execution,  other- 
wise it  will  be  murder  or  manslaughter,  or  at  least  a  great  misprision 
in  the  judge  that  sentenceth,  or  in  the  minister  that  executeth.  1  Hale, 
P.  C.  496.' 

8  Accord:  Boycotting,  State  v.  Glldden,  56  Conn.  40.  8  Atl.  S00,  3  Am. 
sr.  Rep.  23  (1887);  Crump  v.  Commonwealth,  84  Va.  027,  6  S.  E.  G20,  10 
Am.  Si.   Rep.  S'.C,  USSSi. 

If  the  Indictment  is  for  conspiracy  to  commit  a  crime  of  which  concert 
is  .-in  essential  element,  such  as  adultery,  the  agreement  to  do  the  act  can- 
not be  separated  from  flic  act  Itself  i<>  form  the  foundation  for  a  charge  of 
conspiracy.  Shannon  v.  Commonwealth,  11  Pa.  '-"-«'>  (1850);  Miles  v.  state 
58  Ala.  :;!w>  (1877).  Of.  State  v.  Huegbl,  110  Wis.  ISO.  85  N.  W.  10UJ.  62 
L  l;.  A.  700  (1901). 

To  convld  <>f  conspiracy,  it  is  not  necessary  that  defendant  was  a  party 
to  the  conspiracy  at  its  formation.  Ut>  is  guilty  if,  with  knowledge  of  the 
conspiracy,  be  aids  in  carrying  it  into  execution.  People  v.  Mather,  4 
Wend.  (N.  Y.»  '2-:k  21  Am.  i>>>c  122  (1830).  Since  the  conspiracy  Is  complete 
when  the  unlawful  agreement  is  made,  a  subsequent  withdrawal  before  the 
contemplated  act  is  committed  i^  no  defense  to  the  charge  of  conspiracy. 
I  Mil    v.   State,  :J5  Tex.  Cr.    K.   2  1".  .::;  S.  W.   120,  GO  Am.   St.   Kcp.  37   (1895). 


Sec.  3)  AUTHORIZED    ACTS.  UU.J 

LEONIN'S  CASE. 

(Worcestershire  Eyre,  1221.    Select  Pleas  of  the  Crown.    Sel.  Soc.  PI.  133.) 

Leonin,  Phillip's  son,  and  Jacob  his  servant  slew  John  of  Middle- 
ton  in  the  forest  of  Kinfare  and  fled  and  were  dwelling  in  Stafford- 
shire in  the  township  of  Kinfare.  And  therefore  this  must  be  discuss- 
ed at  Stafford.  Let  them  be  exacted  and  outlawed.  Inquiry  as  to 
their  chattels  must  be  made  at  Stafford.    Englishry  is  presented. 

Afterwards  came  John,  Phillip's  son,  Robert  of  Stapleton  and  Adam 
of  Peissi  and  undertook  to  produce  Leonin  and  Jacob  before  the  jus- 
tices at  Stafford  to  abide  judgment.  So  the  sheriff  is  ordered  that 
the  exacting  and  outlawing  be  respited  until  they  shall  have  another 
order. 

At  Lichfield  came  Leonin  and  Jacob  and  put  themselves  upon  their 
verdict  as  to  when,  where,  and  by  whom  the  deed  was  done.  The  ju- 
rors of  the  hundred  of  Seisdon  say  that  in  the  time  of  the  war  John 
came  with  many  others  into  the  king's  forest  to  offend  in  the  forest, 
as  was  his  wont,  and  was  found  seised  of  the  whole  body  of  a  doe,  and 
the  king's  servants  and  foresters  could  not  take  him  alive,  and  he 
defended  himself  against  our  lord  the  king  and  cut  off  a  forester's 
finger,  and  thus  it  was  that  he  was  slain.  And  so  it  is  considered  that 
[Leonin  and  Jacob]  be  quit  thereof.1 


UNITED  STATES  v.  RICE. 

(United  States  Circuit  Court  for  North  Carolina,  1875.     1  Hughes,  560,  Fed. 

Cas.  No.  16,153.) 

On  the  15th  of  last  September,  Andrew  Woody,  of  Spring  Creek, 
Madison  county,  was  killed  by  Noah  H.  Rice,  a  United  States  deputy 
marshal,  who  was  endeavoring  to  serve  a  capias  on  him  for  violation 
of  the  internal  revenue  laws.  From  facts  developed  before  the  court 
it  appears  that  Woody  had  expressed  a  determination  to  resist  any 
process  which  might  issue  against  him,  and  had  threatened  to  kill 
the  defendant,  Rice,  if  he  attempted  to  arrest  him.  When  this  officer 
came  upon  Woody,  the  latter  was  armed  with  a  rifle.  His  demeanor 
was  hostile,  and  when  commanded  to  surrender  he  so  acted  as  to  im- 
press the  officer  with  the  belief  that  his  intention  was  to  shoot  him, 
and  in  self-defense  he  fired  upon  Woody  with  fatal  effect.  Rice  came 
to  Asheville  and  surrendered  himself  to  the  authorities,  was  examined 
by  Commissioner  Watts  on  application  for  bail,  and  committed  to  jail. 
His  case  was  finally  removed  to  the  United  States  court,  on  Tuesday, 
May  11,  1875.    He  was  placed  upon  trial  for  his  life.    The  jury  hav- 

i  See,  also,  Anon.  Y.  B.  30  &  31  Edw.  I,  512  (1302). 
Mik.Cb.L..— 15 


Wy<x«  (fW-Mj 


226  THE   CRIMINAL   ACT.  (Ch.   6 

ing  requested  full  instructions  from  the  bench,  they  were  given  as  fol- 
lows by 

Dick,  J.  As  this  is  a  case  of  considerable  importance  to  the  defend- 
ant, and  also  to  the  due  administration  of  justice,  I  have  deemed  it 
proper  to  commit  to  writing  my  instructions  to  the  jury  upon  the 
questions  of  law  involved.1 

It  is  conceded  that  the  alleged  homicide  was  committed  by  the  de- 
fendant, and  he  places  his  defense  upon  the  ground  that  he  was  a  reg- 
ular constituted  officer  of  the  United  States,  and  had  in  his  hands  at 
the  time  of  the  homicide  the  process  of  law  which  authorized  and  com- 
manded him  to  arrest  the  deceased  for  a  crime  against  the  United 
States ;  that  the  deceased  resisted  the  execution  of  such  process  with  a 
deadly  weapon  in  his  hands,  and  had  manifested  a  purpose  to  use  such 
deadly  weapon  in  resistance ;  and  that  the  homicide  was  necessarily 
committed  in  the  attempt  to  make  an  arrest. 

This  defense  necessarily  leads  us  to  inquire  what  protection  the 
common  law  affords  to  ministerial  officers,  and  how  far  they  are  au- 
thorized to  go  in  the  performance  of  their  public  duties. 

Social  order  and  political  government  are  dependent  upon  the  ob- 
servance of  law  by  the  citizen.  The  mandates  of  the  law  are  executed 
by  officers  provided  for  such  purposes,  and  such  officers  are  invested 
by  the  law  with  the  authority  necessary  to  execute  its  mandates,  and 
it  affords  them  all  the  protection  possible  in  the  rightful  performance 
of  the  duties  imposed.  This  rule  is  absolutely  necessary  for  the  ad- 
vancement of  justice,  and  is  founded  in  wisdom  and  equity  and  in  the 
principles  of  social  and  political  order.  The  law  must  be  supreme 
within  the  sphere  of  its  operation,  or  its  influence  would  be  nugatory, 
and  there  would  be  no  certain  rule  to  regulate  human  conduct  in  society 
and  government,  and  all  the  rights  and  liberties  of  citizens  would  soon 
be  lost  in  a  chaos  of  anarchy. 

Mr.  Justice  Foster  says:  "Ministers  of  justice,  while  in  the  execu- 
tion of  their  offices,  are  under  the  peculiar  protection  of  the  law." 
Foster,  308.  If  an  officer  is  killed  while  performing  his  duty,  the  law 
deems  such  killing  murder  of  malice  prepense. 

This  protection  is  not  confined  to  the  precise  time  when  the  officer 
is  performing  his  official  duty,  but  extends  over  him  while  going  to, 
remaining  at,  and  returning  from  the  place  of  action.  Any  opposition, 
obi  traction,  or  resistance  intended  to  prevent  an  officer  from  doing  his 
official  duty  is  an  indictable  offense  at  common  law,  and  the  punish- 
ment is  regulated  by  the  nature  of  the  offense. 

An  officer  is  authorized  to  summons  as  many  persons  as  may  be 
necessary  to  assist  him  in  the  performance  of  his  legal  duties,  and 
such  persons  are  bound  to  obey  such  summons,  and  they  are  under  the 
same  protection  afforded  to  officers,  as  they  are  for  the  time  officers 
of  the  law.     The  law  imposes  upon  private  persons  the  duty  of  sup- 

■  Part  of  tiip  charge  is  omitted. 


Sec.  3)  AUTHORIZED   ACTS.  227 

pressing  affrays,  preventing  felonies  from  being  committed  in  their 
presence,  and  arresting  such  offenders  and  bringing  them  to  justice; 
and  such  private  persons,  while  performing  their  duties,  are  under 
the  protection  of  the  law.  We  may  confidently  lay  down  the  broad 
general  principle  that,  when  any  person  is  performing  a  public  duty 
required  of  him  by  law,  he  is  under  the  protection  of  the  law.  An  of- 
ficer of  the  law  who  has  legal  process  in  his  hands  is  bound  to  execute 
it  according  to  the  mandate  of  the  writ.  If  he  is  resisted  in  the  per- 
formance of  this  duty,  he  must  overcome  such  resistance  by  the  use 
of  such  force  as  may  be  necessary  for  him  to  execute  his  duty.  If 
necessary,  the  law  authorizes  him  to  resort  to  extreme  measures,  and 
if  the  resisting  party  is  killed  in  the  struggle  the  homicide  is  justifi- 
able.   Garrett's  Case,  Winston,  144.2 

If  unnecessary  and  excessive  force  is  used,  after  resistance  has  en- 
tirely ceased  and  the  defendant  in  the  writ  has  manifested  his  willing-    **  04  fc  (K 
ness  to  submit  to  the  mandates  of  the  law  and  be  arrested,  then,  if     <      j.   . 
the  said  defendant  is  killed,  the  officer  will  be  guilty  of  manslaughter ;     *£ 
and  if  the  blood  had  time  to  cool  the  killing  would  be  murder.     2   ' 
Wharton,  Crim.  Law,  1030,  1031,  and  authorities  referred  to  in  note.3 

If,  however,  the  defendant  in  the  writ  only  ceases  his  resistance  up-  i 
on  the  officer  desisting  from  his  attempt  to  arrest,  and  still  keeps  him-  l<  <x**yi 
self  in  a  condition  to  renew  the  resistance  with  a  deadly  weapon,  if  ^^CU.^XMr^) 
the  officer  should  renew  the  effort  to  arrest,  and  the  officer  cannot 
make  the  arrest  without  great  personal  danger,  he  would  be  justified 
in  killing  the  defendant.  The  submission  of  the  defendant  in  such  a 
case  is  not  complete,  and  as  long  as  he  refuses  to  be  arrested  he  is  in 
a  state  of  resistance;  and  if  he  is  armed  with  a  deadly  weapon,  and 
has  manifested  an  intent  to  use  it,  and  still  keeps  the  weapon  in  his 
possession  convenient  for  an  emergency  and  the  officer  has  reasonable 
grounds  for  believing  that  the  weapon  will  be  used  if  an  arrest  is  at- 
tempted, the  officer  is  not  required  to  risk  his  life  in  a  rencounter, 
or  desist  from  an  effort  to  perform  his  duty.  When  a  person  puts 
himself  in  an  armed  and  deadly  resistance  to  the  process  of  the  law, 
he  becomes  virtually  an  outlaw,  and  officers  are  not  required  to  show 
him  the  courtesy  of  a  chivalrous  antagonist  and  give  him  an  open  field 
and  fair  fight.  It  is  only  when  a  criminal  submits  to  the  law  that  it 
throws  round  him  the  mantle  of  protection  and  administers  justice 
with  mercy.  It  is  the  duty  of  every  offender  charged  with  crime  in 
due  process  of  law  to  quietly  yield  himself  up  to  public  justice.  State 
v.  Bryant,  65  N.  C.  327 ;  State  v.  Garrett,  Winston,  144. 


State, 

(C. 

Contra,   where   arrest   is  for   a   misdemeanor:     Stephens  v.   Commonwealth, 

20  Ky.  Law  Rep.  544,  47  S.  W.  229  (1S9S). 

s  Accord :    Gosse's  Case,  Vent.  216  (1673) ;    State  v.  Rose.  142  Mo.  418,  44  S. 
W.  329  (1S97). 


w2S  THE   CRIMINAL   ACT.  (Ch.   6 

A  known  officer,  in  attempting  to  make  an  arrest  by  virtue  of  a 
warrant,  is  not  bound  to  exhibit  his  warrant  and  read  it  to  a  defend- 
ant before  he  secures  him,  if  he  resists.  If  no  resistance  is  offered, 
the  officer  ought  always,  upon  demand  made,  show  his  warrant  to  the 
party  arrested,  or  notify  him  of  the  substance  of  the  warrant,  so  that 
he  may  have  no  excuse  for  placing  himself  in  opposition  to  the  process 
of  the  law.  This  is  only  a  rule  of  precaution.  A  defendant  is  bound 
to  submit  to  a  known  officer — to  yield  himself  immediately  and  peace- 
ably into  the  custody  of  the  officer  before  the  law  gives  him  the  right 
of  having  the  warrant  read  and  explained.  When  in  resistance,  the 
law  shows  him  no  favor.  A  defendant,  knowing  the  arresting  party 
to  be  an  officer,  is  bound  to  submit  to  the  arrest,  reserving  the  right 
of  action  against  the  officer  in  case  the  latter  be  in  the  wrong.  When 
a  person  acts  in  a  public  capacity  as  an  officer,  it  will  be  presumed 
that  he  was  rightfully  appointed.  1  Wharton,  Cr.  Law,  §§  1289,  2925; 
Cooley's  Case,  6  Gray  (Mass.)  350. 

One  who  is  not  a  known  officer  ought  to  show  his  warrant  and  read 
it,  if  required;  but  it  would  seem  that  this  duty  is  not  so  imperative 
as  that  a  neglect  of  it  would  make  him  a  trespasser  ab  initio,  when 
there  is  proof  that  the  party  subject  to  be  arrested  had  notice  of  the 
warrant,  and  was  fully  aware  of  its  contents,  and  had  made  up  his 
mind  to  resist  its  execution  at  all  hazards.    Garrett's  Case,  supra. 

The  law,  in  its  humanity  and  justice,  will  not  allow  unnecessary 
force  to  be  used  in  the  execution  of  its  process.  If  a  defendant,  with- 
out any  deadly  weapon  or  manifestation  of  excessive  violence,  makes 
resistance,  an  officer  is  not  justified  in  willfully  shooting  him  down; 
but  if  a  defendant  has  a  deadly  weapon,  and  has  manifested  a  purpose 
to  use  it  if  an  arrest  is  attempted,  the  officer  is  not  bound  to  wait  for 
him  to  have  an  opportunity  of  carrying  bis  purpose  into  effect.  If 
the  warrant  is  for  a  misdemeanor,  and  a  defendant  attempts  to  avoid 
an  arrest  by  flight,  the  officer  has  no  right  to  shoot  him  down  to  pre- 
vent escape,  nor  even  after  an  arrest  has  been  made  and  defendant  es- 
capes from  custody.     Foster's  Case,  1  L.  C.  C.  187.* 

The  rule  is  different  in  cases  of  felony.    Bryant's  Case,  supra.5 

If  an  officer  has  process  in  his  hands,  issuing  from  a  court  of  com- 
petent jurisdiction  over  the  subject-matter,  authorizing  and  command- 
ing him  to  arrest  a  defendant,  he  is  entitled  to  the  protection  which 
the  law  affords  officers  acting  under  process,  although  the  process  in 
his  hands  is  informal  and  irregular.  Tf  the  process  is  illegal  and  void 
on  its  face,  or  is  against  the  wrong  person,  or  its  execution  is  attempt- 

•  Accord:  Reneau  v.  State,  2  Lea  (Trim.)  720.  81  Am.  Rep.  828  (1879); 
Handley  v.  State  98  Ala.  48,  n  South.  322,  88  Am.  St.  Rep.  81  (1891);  State 
v.  Smith,  127  towa,  684,  108  N.  W.  944,  To  L.  R,  A.  246,  L09  Am.  St.  Rep. 
402  (1908). 

■  Accord:  Oarr  v.  State,  48  Ark.  99  (1884).  "This  rule  not  only  applies 
in  the  felon  himself,  hut  also  to  those  who  are  seeking  t<>  rescue  the  prisoner." 
Deemer,  J.,  in  sen,,  v.  Smith.  127  Iowa,  B84,  103  N.  W.  044,  to  l.  It.  A. 
248,  100  Am.  St.  Rep.  402  (1906). 


Sec.  3)  AUTHORIZED   ACTS.  229 

ed  out  of  the  district  in  which  it  can  alone  be  executed,  then  the  officer 
would  not  be  under  the  protection  of  the  law;  but  it  would  seem  that, 
if  he  kills  a  resisting  party  under  such  circumstances,  he  would  only 
be  guilty  of  manslaughter,  unless  he  had  actual  knowledge  of  his  want 
of  authority,  or  acted  from  express  malice. 

I  have  stated  to  you  many  points  of  law  which  do  not  directly  arise 
in  the  case  before  us;  but  it  is  important  that  they  should  be  known 
and  well  understood  in  the  country  where,  in  recent  years,  so  much 
violence  has  been  committed — violence  in  the  name  of  law,  and  vio- 
lence in  the  defiance  of  law. 

The  principles  of  law  involved  in  this  case  having  been  explained 
to  you  by  the  court,  it  is  now  your  duty  to  ascertain  the  facts  from 
the  testimony  and  apply  them  to  the  law  as  laid  down  by  the  court. 

The  jury,  after  a  retirement  of  two  hours,  found  a  verdict  of  "not 
guilty." 


II.  Acts  in  Furtherance  of  Domestic  Authority. 
BRADLEY  v.  HIS  WIFE. 

(King's  Bench,  1663.    1  Keb.  637.) 

3.1  They  refused  to  bind  him  to  the  peace  at  her  suit,  unless  her 
life  be  in  danger,  because  by  the  law  he  hath  power  of  castigation ; 
and  the  Bishop  of  London  had  certified  he  used  to  beat  her,  but  that 
she  used  to  provoke  him;  and  that  by  reason  of  their  wilfulness  he 
could  not  end  their  difference,  according  to  the  reference  of  the  court 
last  term. 


STATE  v.  OLIVER. 

(Supreme  Court  of  North  Carolina,  1874.    70  N.  C.  60.) 

Settle,  J.  We  may  assume  that  the  old  doctrine,  that  a  husband 
had  a  right  to  whip  his  wife,  provided  he  used  a  switch  no  larger  than 
his  thumb,  is  not  law  in  North  Carolina.  Indeed,  the  courts  have  ad- 
vanced from  that  barbarism  until  they  have  reached  the  position  that 
the  husband  has  no  right  to  chastise  his  wife,  under  any  circumstan- 
ces.2 

But -f  rota-motives  of  public  policy,  in  order  to  preserve  the  sanctity 
of  the  domestic  circle,  the  courts  will  not  listen  to  trivial  complaints. 

If  no  permanent  injury  has  been  inflicted,  nor  malice,  cruelty,  nor 

i  The  first  and  second  resolutions  are  omitted. 

a  Accord:  People  v.  Winters,  2  Parker,  Cr.  R.  (N.  T.)  10  (1823);  State 
v.  Buckley,  2  Har.  (Del.)  552  (1S38) ;  Commonwealth  v.  McAfee,  108  Mass. 
458,  11  Am.  Rep.  383  (1871). 


230  THE   CRIMINAL   ACT.  (Ch.   6 

dangerous  violence  shown  by  the  husband,  it  is  better  to  draw  the 
curtain,  shut  out  the  public  gaze,  and  leave  the  parties  to  forget  and 
forgive. 

No  general  rule  can  be  applied,  but  each  case  must  depend  upon  the 
circumstances  surrounding  it. 

Without  adverting  in  detail  to  the  facts  established  by  the  special 
verdict  in  this  case,  we  think  that  they  show  both  malice  and  cruelty. 

In  fact,  it  is  difficult  to  conceive  how  a  man,  who  has  promised  up- 
on the  altar  to  love,  comfort,  honor,  and  keep  a  woman,  can  lay  rude 
and  violent  hands  upon  her  without  having  malice  and  cruelty  in  his 
heart. 

Let  it  be  certified  that  the  judgment  of  the  superior  court  is  af- 
firmed. 

PER  CURIAM.    Judgment  affirmed.2 


<^Vtk<fc'^  GREY'S  CASE. 

(Old  Bailey,  1666.     Kelyng,  64.) 

John  Grey  being  indicted  for  the  murder  of  William  Golding,  the 
jury  found  a  special  verdict  to  this  effect,  viz.:  We  find  that  the 
day,  year,  and  place  in  the  indictment  mentioned,  John  Grey,  the  pris- 
oner, was  a  blacksmith,  and  that  William  Golding,  the  person  killed, 
was  his  servant,  and  that  Grey,  his  master,  commanded  him  to  mend 
certain  stamps,  being  part  belonging  to  his  trade,  which  he  neglected 
to  do ;  and  the  said  Grey,  his  master,  after  coming  in  asked  him,  the 
said  Golding,  why  he  had  not  done  it,  and  the  said  Grey  told  the  said 
Golding,  that  if  he  would  not  serve  him,  he  would  serve  in  Bridewel, 
to  which  the  said  Golding  replied  that  he  had  as  good  serve  in  Bride- 
wel as  serve  the  said  Grey  his  master;  whereupon  the  said  Grey, 
without  any  other  provocation,  struck  the  said  Golding  with  a  bar  of 
iron,  which  the  said  Grey  then  had  in  his  hand,  upon  which  he  and 
Golding  were  working  at  the  anvil,  and  with  the  said  blow  he  broke 
his  skull,  of  which  he  died;  and  if  this  be  murder,  etc.  This  case 
was  found  specially  by  the  desire  of  my  Brother  Wylde,  and  I  showed 
the  special  verdict  to  all  my  Brethren,  Judges  of  the  King's  Bench, 
and  to  my  U>rd  Bridgman,  Chief  Justice  of  the  Common  Picas.  And 
wc  were  all  of  opinion  that  this  was  murder.  For  if  a  father,  master, 
or  schoolmaster,  will  correct  his  child,  servant,  or  scholar,  tlicv  must 
do  it  with  such  things  as  are  fit  for  correction,  and  not  with  such 
instruments  as  may  probably  kill  them.  For  otherwise,  under  pre- 
tence  of  correction,  a  parent  might  kill  his  child,  or  a  master  his  serv- 

2  Accord:    Bradley  v.  State,  Walk.  (Miss.)  166  (1824), 

"it  is  sickly  sensibility  which  holds  that  a  man  may  not  lny  hands  on 
his  wife,  even  rudely,  If  necessary,  to  prevenl  the  commission  of  some  un- 
lawful or  criminal  purpose."  Armstrong,  J.,  In  Richards  v.  Richards,  l 
Grant,  '"as.  (Pa.)  889  (1 


SCC.  3)  AUTHORIZED   ACTS.  231 

ant,  or  a  schoolmaster  his  scholar,  and  a  bar  of  iron  is  no  instrument 
for  correction.  It  is  all  one  as  if  he  had  run  him  through  with  a  sword ; 
and  my  Brother  Morton  said  he  remembered  a  case  at  Oxford  As- 
sizes before  Justice  Jones,  then  Judge  of  Assize,  where  a  smith  be- 
ing chiding  with  his  servant,  upon  some  cross  answer  being  given 
by  his  servant,  he  having  a  piece  of  hot  iron  in  his  hand,  run  it  into 
his  servant's  belly,  and  it  was  judged  murder,  and  the  party  executed. 
And  my  Lord  Bridgman  said,  that  in  his  circuit  there  was  a  woman 
indicted  for  murdering  her  child,  and  it  appeared  upon  the  evidence, 
that  she  kicked  her  and  stamped  upon  her  belly,  and  he  judged  it 
murder;  and  my  Brother  Twisden  said,  he  ruled  such  a  case  formerly 
in  Gloucester  Circuit,  for  a  piece  of  iron  or  a  sword,  or  a  great  cudgel, 
with  which  a  man  probably  may  be  slain,  are  not  instruments  of  cor- 
rection. And  therefore  when  a  master  strikes  his  servant  willingly 
with  such  things  as  those  are,  if  death  ensue,  the  law  shall  judge  it 
malice  prepensed. 

But  if  a  parent,  master,  or  schoolmaster,  correct  his  child,  servant, 
or  scholar,  with  such  things  as  are  usual  and  fit  for  correction,  and 
they  happen  to  die,  Poulton  de  Pace,  page  120,  saith  this  is  by  misad- 
venture, and  cites  for  authority,  Kelloway,  108,  a,  b,  and  136,  a.  But 
that  book,  which  puts  this  case  in  Kelloway  is  136,  a,  saith,  that  if  a 
man  correct  his  servant,  or  lord  his  villain,  and  by  force  of  that  cor- 
rection he  dieth,  although  he  did  not  intend  to  kill  him,  yet  this  is  a 
felony,  because  they  ought  to  govern  themselves  in  their  correction 
in  such  ways  that  such  a  misadventure  might  not  happen.  And  I 
suppose,  because  the  word  misadventure  is  there  used,  therefore 
Poulton  concludeth  (it  may  be  truly)  that  it  is  but  misadventure. 


BOYD  v.  STATE. 

(Supreme  Court  of  Alabama,   1889.     88  Ala.  169,  7  South.  268,  16  Am.   St. 

Rep.  31.) 

SomervilIvE,  J.1  The  defendant,  a  schoolmaster,  being  indicted, 
was  convicted  of  an  assauk  and  battery  on  one  Lee  Crowder,  a  pupil 
in  his  school,  who  is  shown  to  have  been  about  18  years  of  age. 
The  defense  is  that  the  alleged  battery  was  a  reasonable  chastisement 
inflicted  by  the  master  in  just  maintenance  of  discipline,  and  in 
punishment  of  conduct  on  the  part  of  the  pupil  which  tended  to  the 
subversion  of  good  order  in  the  school. 

The  case  involves  a  consideration  of  the  proper  rule  of  law  pre- 
scribing the  extent  of  the  schoolmaster's  authority  to  administer 
corporal  correction  to  a  pupil. 

The  principle  is  commonly  stated  to  be  that  the  schoolmaster,  like 
the  parent,  and  others  in  foro  domestico,  has  the  authority  to  moder- 

i  Part  of  this  case  is  omitted 


232  THE   CRIMINAL  ACT.  (Ch.   G 

ately  chastise  pupils  under  his  care,  or,  as  stated  by  Chancellor  Kent, 
"the  right  of  inflicting  moderate  correction,  under  the  exercise  of  a 
sound  discretion."  2  Kent's  Com.  *203,  *206.  In  other  words,  he 
may  administer  reasonable  correction,  which  must  not  "exceed  the 
bounds  of  due  moderation,  either  in  the  measure  of  it,  or  in  the  in- 
strument made  use  of  for  the  purpose."  If  he  go  beyond  this  ex- 
tent, he  becomes  criminally  liable,  and,  if  death  ensues  from  the 
brutal  injuries  inflicted,  he  may  be  liable,  not  only  for  assault  and 
battery,  but  to  the  penalties  of  manslaughter,  or  even  murder,  ac- 
cording to  the  circumstances  of  the  case.    1  Archbold's  Cr.  Prac.  *218 ; 

1  Bish.  Cr.  Law  (7th  Ed.)  §§  881,  8S2. 

This  power  of  correction,  vested  by  law  in  parents,  is  founded  on 
their  duty  to  maintain  and  educate  their  offspring.  In  support  of 
that  authority,  they  must  have  "a  right  to  the  exercise  of  such  dis- 
cipline as  may  be  requisite  for  the  discharge  of  their  sacred  trust." 

2  Kent's  Com.  *203.  And  this  power,  allowed  by  law  to  the  parent 
over  the  person  of  the  child,  "may  be  delegated  to  a  tutor  or  instruc- 
tor, the  better  to  accomplish  the  purpose  of  education."  Id.  *205 ; 
1  Black.  Com.  *507. 

The  better  doctrine  of  the  adjudged  cases,  therefore,  is  that  the 
teacher  is,  within  reasonable  bounds,  the  substitute  for  the  parent, 
exercising  his  delegated  authority.  He  is  vested  with  the  power  to 
administer  moderate  correction  with  a  proper  instrument  in  cases 
of  misconduct,  which  ought  to  have  some  reference  to  the  character 
of  the  offense  and  the  sex,  age,  size,  and  physical  strength  of  the 
pupil.  When  the  teacher  keeps  within  the  circumscribed  sphere  of  his 
authority,  the  degree  of  correction  must  be  left  to  his  discretion,  as 
it  is  to  that  of  the  parent,  under  like  circumstances.  Within  this 
limit,  he  has  the  authority  to  determine  the  gravity  or  heinousness 
of  the  offense,  and  to  mete  out  to  the  offender  the  punishment  which 
he  thinks  his  conduct  justly  merits ;  and  hence  the  parent  or  teacher 
is  often  said,  pro  hac  vice,  to  exercise  "judicial  functions."  2 

All  of  the  authorities  agree  that  he  will  not  be  permitted  to  deal 
brutally  with  his  victim,  so  as  to  endanger  life,  limb,  or  health.  He 
will  not  be  permitted  to  inflict  "cruel  and  merciless  punishment." 
Schouler's  Dom.  Rel.  (4th  Ed.)  §  244.  He  cannot  lawfully  disfigure 
him,  or  perpetrate  on  his  person  any  other  permanent  injury.  As 
said  by  Gaston,  J.,  in  State  v.  Pcndcrgrass,  19  N.  C.  365,  31  Am.  Dec. 
416,  a  case  generally  approved  by  the  weight  of  American  authority: 
"It  may  be  laid  down  as  a  general  rule  that  teachers  exceed  the  limit 

2  Arc.ni :  Stepfather,  State  v.  Alford,  68  N.  0.  H22  (1873);  master  of 
apprentice,  State  v.  Dlckerson,  98  N.  <".  708,  :;  s.  B>.  687  (1887).  a  brother 
who  provides  a  sister  of  16  years  with  lodging,  clothing,  and  schooling  may 
Inflict  moderate  correction,  Snowdea  v.  State,  12  Tex.  App.  106,  tt  Am.  Rep. 
667.  This  doctrine  vras  held  in  Donnelley  v.  Territory,  •".  Ariz.  291,  62  Pac. 
:>,f,H  (1898),  not   to  extend  to  the  patriarch  or  prlesl  of  a  community,  even 

though  the  punishment   was   Inflicted   With   the  consent    of   the  Child's  parents. 


Sec.  3)  AUTHORIZED   ACTS.  233 

of  their  authority  when  they  cause  lasting  mischief,  but  act  within  the 
limits  of  it  when  they  inflict  temporary  pain." 

There  are  some  well-considered  authorities  which  hold  teachers 
and  parents  alike  liable  criminally  if,  in  the  infliction  of  chastisement, 
they  act  clearly  without  the  exercise  of  reasonable  judgment  and 
discretion.  The  test  which  seems  to  be  fixed  by  these  cases  is  the 
general  judgment  of  reasonable  men.  Patterson  v.  Nutter,  78  Me. 
509,  7  Atl.  273,  57  Am.  Rep.  818.  The  more  correct  view,  however, 
and  the  one  better  sustained  by  authority,  seems  to  be  that  when,  in 
the  judgment  of  reasonable  men,  the  punishment  inflicted  is  immoderate 
or  excessive,  and  a  jury  would  be  authorized  from  the  facts  of  the 
case  to  infer  that  it  was  induced  by  legal  malice  or  wickedness  of 
motive,  the  limit  of  lawful  authority  may  be  adjudged  to  be  passed. 
In  determining  this  question,  the  nature  of  the  instrument  of  correction 
used  may  have  a  strong  bearing  on  the  inquiry  as  to  motive  or  intention. 
The  latter  view  is  indorsed  by  Mr.  Freeman,  in  his  note  to  the  case 
of  State  v.  Pendergrass,  31  Am.  Dec.  419,  as  the  more  correct.  "The 
qualification,"  he  observes,  "that  the  schoolmaster  shall  not  act  from 
malice,  will  protect  his  pupils  from  outbursts  of  brutality,  whilst, 
on  the  other  hand,  he  is  protected  from  liability  for  mere  errors  of 
judgment."  Lander  v.  Seaver,  32  Vt.  114,  76  Am.  Dec.  156,  and  note 
pp.  164-167;  State  v.  Alford,  68  N.  C.  322;  State  v.  Harris,  63  N. 
C.  1. 

There. was  evidence  in  this  case  from  which  the  inference  of  malice 
could  have  been  deduced  as  influencing  the  conduct  of  the  defendant 
in  his  chastisement  of  young  Crowder,  both  as  to  his  outbursts  of 
temper  and  in  the  use  of  improper  instruments  of  correction.  Taking, 
as  we  must,  every  reasonable  inference  which  the  judge,  acting  as  a 
jury,  could  have  drawn  from  the  evidence,  we  take  as  true,  among 
others,  the  following  facts:  That  after  the  severe  chastisement  ad- 
ministered in  the  schoolroom  the  defendant  followed  Crowder  into 
the  schoolyard,  and  struck  him  with  "a  limb  or  stick,"  and  then  "put 
his  hands  in  his  pocket,  as  if  to  draw  a  knife";  that,  although  Crowder 
did  not  strike  back,  but  only  protested  against  and  resisted  casti- 
gation,  and,  after  apologizing  for  the  objectionable  language  imputed 
to  him,  asked  permission  to  withdraw  from  the  school,  the  defendant, 
after  promising  not  to  strike  him,  "afterwards  struck  him  in  the 
face  three  licks  with  his  fist,  and  hit  him  several  licks  over  the 
head  with  the  butt  end  of  the  switch."  From  these  blows  the  eye  of 
the  young  man  was  "considerably  swollen,"  and  was  "closed  for 
several  days."  The  attending  physician  testified  that  there  were 
"marks  on  his  head  made  by  a  stick,  in  his  opinion."  One  witness 
asserts  that  the  defendant  declared  he  "would  conquer  him  (Crowder) 
or  kill  him."  All  the  witnesses  for  the  state  say  that  the  defendant 
was  apparently  very  angry  all  the  time,  and  was  very  much  excited, 
and  after  he  got  through  whipping  Crowder  he  remarked,  in  an  ex- 
cited, angry  voice,  in  the  presence  of  the  school  and  others,  that  he 


234  THE   CRIMINAL  ACT.  (Ch.   6 

"could  whip  any  man  in  China  Grove  beat."  From  this  unseemly 
conduct  on  the  part  of  one  whose  duty  it  was  to  set  a  good  example 
of  self-restraint  and  gentlemanly  deportment  to  his  pupils,  there  was 
ample  room  for  the  inference  of  legal  malice,  in  connection  with  un- 
reasonable and  immoderate  correction.  Nor  was  the  limb  of  a  tree, 
of  the  size  indicated  by  the  evidence,  nor  a  clinched  fist  applied 
in  bruising  the  pupil's  eye,  after  the  manner  of  a  prize  fighter,  a 
proper  instrument  of  correction  to  be  used  on  such  an  occasion. 

The  conviction  must  accordingly  be  sustained,  without  assuming 
any  jurisdiction  to  review  the  correctness  of  the  judge's  finding  on 
the   facts. 

Affirmed. 


III.  Acts  in  Prevention  of  Crime. 

HOWELL'S  CASE. 

(Worcestershire  Eyre,  1221.     Select  Pleas  of  the  Crown.     Sel.  Soc.  PI.  145.) 

Howell,  the  Markman,  a  wandering  robber,  and  his  fellows  as- 
saulted a  carter,  and  would  have  robbed  him,  but  the  carter  slew 
Howell  and  defended  himself  against  the  others  and  escaped.  And 
whereas  it  is  testified  that  Howell  was  a  robber,  let  the  carter  go 
quit  thereof.  And  note  that  he  is  in  the  parts  of  Jerusalem,  but  let 
him  come  back  safely,  quit  of  that  death. 


STOREY  v.  STATE. 

(Supreme  Court  of  Alabama,  1882.    71  Ala.  329.) 

Somkrville,  J.1  The  record  contains  some  evidence  remotely 
tending  to  show  that  the  prisoner  was  in  pursuit  of  the  deceased  for 
the  purpose  of  recapturing  a  horse,  which  the  deceased  had  either 
stolen,  acquired  by  fraud,  or  else  unlawfully  converted  to  his  own  use. 

If  the  property  was  merely  converted,  or  taken  possession  of  in 
such  manner  as  to  constitute  a  civil  trespass,  without  any  criminal 
intent,  it  would  not  be  lawful  to  recapture  it  by  any  exercise  of  force 
which  would  amount  even  to  a  breach  of  the  peace,  much  less  a  felo- 
nious homicide.  Street  v.  Sinclair,  71  Ala.  110;  Burns  v.  Campbell, 
Id.  21  1. 

Taking  the  hypothesis  that  there  was  a  larceny  of  the  horse,  it 
becomes  important  to  inquire  what  would  then  be  the  rule.  The  lar- 
ceny of  a  horse  is  a  felony  in  this  state,  being  specially  made  so  by 
statute,  without  regard  to  the  value  of  the  animal  stolen.     Code  1876, 

i  Part  of  the  opinion  Is  omitted. 


«f  <***jfc^<H<A^  ^U' 


A     ' 


Sec.  3)  AUTHORIZED   ACTS.  235 

§  4358.  The  fifth  charge  requested  by  the  defendant  is  an  assertion 
of  the  proposition  that  if  the  horse  was  feloniously  taken  and  carried 
away  by  the  deceased,  and  there  was  an  apparent  necessity  for  killing 
deceased  in  order  to  recover  the  property  and  prevent  the  consum- 
mation of  the  felony,  the  homicide  would  be  justifiable.  The  question 
is  thus  presented  as  to  the  circumstances  under  which  one  can  kill 
in  order  to  prevent  the  perpetration  of  a  larceny  which  is  made  a 
felony  by  statute — a  subject  full  of  difficulties  and  conflicting  expres- 
sions of  opinion  from  the  very  earliest  history  of  our  common-law 
jurisprudence.  The  broad  doctrine  intimated  by  Lord  Coke  was  that 
a  felon  may  be  killed  to  prevent  the  commission  of  a  felony  without 
any  inevitable  cause,  or  as  a  matter  of  mere  choice  with  the  slayer. 

3  Inst.  56.  If  such  a  rule  ever  prevailed,  it  was  at  a  very  early  day, 
before  the  dawn  of  a  milder  civilization,  with  its  wiser  system  of  more 
benignant  laws ;  for  Blackstone  states  the  principle  to  be  that  "where 
a  crime,  in  itself  capital,  is  endeavored  to  be  committed  by  force,  it 
is  lawful  to  repel  that  force  by  the  death  of  the  party  attempting." 

4  Com.  181.  The  reason  he  assigns  is  that  the  law  is  too  tender  of 
the  public  peace  and  too  careful  of  the  lives  of  the  subjects  to  "suffer 
with  impunity  any  crime  to  be  prevented  by  death,  unless  the  same, 
if  committed,  would  also  be  punished  by  death."  It  must  be  admitted 
that  there  was  far  more  reason  in  this  rule  than  the  one  intimated  by 
Lord  Coke,  although  all  felonies  at  common  law  were  punishable  by 
death,  and  the  person  killing,  in  such  cases,  would  seem  to  be  but  the 
executioner  of  the  law.  Both  of  these  views,  however,  have  been  re- 
pudiated by  the  later  authorities,  each  being  to  some  extent  materially 
modified.  All  admit  that  the  killing  cannot  be  done  from  mere  choice  > 
and  it  is  none  the  less  certain  that  the  felony  need  not  be  a  capital 
one  to  come  within  the  scope  of  the  rule.  Gray  v.  Combs,  7  J.  J. 
Marsh.  (Ky.)  478,  23  Am.  Dec.  431;  Cases  on  Self-Defense  (Horr. 
&  Thomp.)  725,  867;  Oliver  v.  State,  17  Ala.  587;  Carroll  v.  State, 
23  Ala.  28,  58  Am.  Dec.  282. 

We  find  it  often  stated,  in  general  terms,  both  by  text-writers  and 
in  many  well-considered  cases,  that  one  may,  as  Mr.  Bishop  expresses 
it,  "oppose  another  who  is  attempting  to  perpetrate  any  felony,  to  the 
extinguishment,  if  need  be,  of  the  felon's  existence."  1  Bish.  Cr. 
Law,  §§  849,  850 ;  State  v.  Rutherford,  8  N.  C.  457,  9  Am.  Dec.  658. 
It  is  observed  by  Mr.  Bishop,  who  is  an  advocate  of  this  theory,  that 
"the  practical  carrying  out  of  the  right  thus  conceded  is  in  some  cir- 
cumstances dangerous,  and  wherever  admitted  it  should  be  carefully 
guarded."     1  Bish.  Cr.  Law,  §  855. 

A fter  ja_  careful  consideration  of  the  subject  we  are  fully  persuaded 
that  the  rule  as  thus  stated  is  neither  sound  in  principle,  nor  is  it  sup- 
ported by  the  weight  of  modern  authority.  The  safer  view  is  that 
taken  by  Mr.  Wharton,  that  the  rule  does  not  authorize  the  killing 
of  persons  attempting  secret  felonies,  not  accompanied  by  force. 
Wharton  on  Horn.  §  539.     Mr.  Greenleaf  confines  it  to  "the  preven- 


236  THE   CRIMINAL  ACT.  (Ch.   6 

tion  of  any  atrocious  crime  attempted  to  be  committed  by  force,  such 
as  murder,  robbery,  house-breaking  in  the  nighttime,  rape,  mayhem, 
or  any  other  act  of  felony  against  the  person"  (3  Greenl.  Ev.  115)  ; 
and  such  seems  to  be  the  general  expression  of  the  common-law  text- 
writers  (1  Russ.  Cr.  665-670;  4  Black.  Com.  178-180;  Whart.  Amer. 
Cr.  Law,  298-403;  1  East,  P.  C.  271;  1  Hale,  P.  C.  488;  Foster, 
274).  It  is  said  by  the  authors  of  Cases  on  Self-Defense,  that  a  kill- 
ing which  "appears  to  be  reasonably  necessary  to  prevent  a  forcible 
and  atrocious  felony  against  property  is  justifiable  homicide."  "This 
rule,"  it  is  added,  "the  common-law  writers  do  not  extend  to  secret 
felonies,  or  felonies  not  accompanied  with  force,"  although  no  modern 
case  can  be  found  expressly  so  adjudging.  They  further  add:  "It 
is  pretty  clear  that  the  right  to  kill  in  defense  of  property  does  not 
extend  to  cases  of  larceny,  which  is  a  crime  of  a  secret  character,  al- 
though the  cases  which  illustrate  this  exception  are  generally  cases 
of  theft  of  articles  of  small  value."  Cases  on  Self-Defense  (Horr.  & 
Thomp.),  901,  902.  This  was  settled  in  Reg.  v.  Murphy,  2  Crawf. 
&  Dix,  C.  C.  20,  where  the  defendant  was  convicted  of  shooting  one 
detected  in  feloniously  carrying  away  fallen  timber  which  he  had 
stolen  from  the  premises  of  the  prosecutor;  the  shooting  being  done 
very  clearly  to  prevent  the  act,  which  was  admitted  to  be  a  felony. 
Doherty,  C.  J.,  said:  "I  cannot  allow  it  to  go  abroad  that  it  is  law- 
ful to  fire  upon  a  person  committing  a  trespass  and  larceny;  for  that 
would  be  punishing,  perhaps  with  death,  offenses  for  which  the  law 
has  provided  milder  penalties."  This  view  is  supported  by  the  follow- 
ing cases:  State  v.  Vance,  17  Iowa,  144,  McClelland  v.  Kay,  14  B. 
Mon.  (Ky.)  106,  and  others  not  necessary  to  be  cited.  See  Cases  on 
Self-Defense,  p.  901,  note. 

There  is  no  decision  of  this  court,  within  our  knowledge,  which 
conflicts  with  these  views.  It  is  true  the  rule  has  been  extended  to 
statutory  felonies,  as  well  as  felonies  at  common  law,  which  is  doubt- 
less the  correct  doctrine;  but  the  cases  adjudged  have  been  open 
crimes  committed  by  force,  and  not  those  of  a  secret  nature.  Oliver's 
Case,  17  Ala.  587;  Carroll's  Case,  23  Ala.  28,  58  Am.  Dec.  282;  Dill's 
Case,  25  Ala.  15. 

In  Pond  v.  People,  8  Mich.  150,  after  indorsing  the  rule  which  we 
have  above  stated,  it  was  suggested  by  Campbell,  J.,  that  there  might 
possibly  be  some  "exceptional  cases"  not  within  its  influence,  a  prop- 
osition from  which  we  are  not  prepared  to  dissent.  And  again  in 
Gray  v.  Combs,  7  J.  J.  Marsh.  (Ky.)  478,  483,  23  Am.  Dec.  431,  it 
was  said  by  Nicholas,  J.,  that  the  right  to  kill  in  order  to  prevenl  the 
perpetration  of  crime  should  depend  "more  upon  the  character  of  the 
crime  and  the  time  and  manner  of  its  attempted  perpetration  than  up- 
on the  degree  of  punishment  attached  by  law."  There  is  much  rea- 
son in  this  view,  and  a  strong  case  might  be  presented  of  one's  shoot- 
ing a  felon  to  prevent  the  asportation  of  a  stolen  horse  in  the  night- 
time, where  no  opportunity  is  afforded  to  recognize  the  thief  or  obtain 


Sec.  3)  AUTHORIZED   ACTS.  L'37 

speedy  redress  at  law.  Both  the  Roman  and  Athenian  laws  made  this 
distinction  in  favor  of  preventing  the  perpetration  of  theft  by  night, 
allowing  in  each  instance  the  thief  to  be  killed  when  necessary,  if 
taken  in  the  act.    4  Black.  Com.  180,  181. 

The  alleged  larceny,  in  the  present  case,  if  it  occurred  at  all, 
was  in  the  open  daylight,  and  the  defendant  is  not  shown  to  have  been 
unable  to  obtain  his  redress  at  law.  Where  opportunity  is  afforded 
to  secure  the  punishment  of  the  offender  by  due  course  of  law,  the 
case  must  be  an  urgent  one  which  excuses  a  killing  to  prevent  any 
felony,  much  less  one  not  of  a  forcible  or  atrocious  nature.  Whart. 
Horn.  §§  536-538.  "No  man,  under  the  protection  of  the  law,"  says 
Sir  Michael  Foster,  "is  to  be  the  avenger  of  his  own  wrongs.  If  they 
are  of  such  a  nature  for  which  the  law  of  society  will  give  him  an 
adequate  remedy,  thither  he  ought  to  resort."  Foster,  296.  It  is 
everywhere  settled  that  the  law  will  not  justify  a  homicide  which  is 
perpetrated  in  resisting  a  mere  civil  trespass  upon  one's  premises  or 
property,  unaccompanied  by  force  or  felonious  intent.  Carroll's  Case, 
23  Ala.  28,  58  Am.  Dec.  282.  Clark's  Man.  Cr.  Law,  §§  355-357; 
Whart.  on  Horn.  §  540.  The  reason  is  that  the  preservation  of  human 
life  is  of  more  importance  than  the  protection  of  property.  The  law 
may  afford  ample  indemnity  for  the  loss  of  the  one,  while  it  utterly 
fails  to  do  so  for  the  other. 

The  rule  we  have  above  declared  is  the  safer  one,  because  it  better 
comports  with  the  public  tranquility  and  the  peace  of  society.  The 
establishment  of  any  other  would  lead  to  disorderly  breaches  of  the 
peace  of  an  aggravated  nature,  and  therefore  tend  greatly  to  cheapen 
human  life.  This  is  especially  true  in  view  of  our  legislative  policy, 
which  has  recently  brought  many  crimes  formerly  classed  and  punish- 
ed as  petit  larcenies  within  the  class  of  statutory  felonies.  It  seems 
settled  that  no  distinction  can  be  made  between  statutory  and  common- 
law  felonies,  whatever  may  be  the  acknowledged  extent  of  the  rule. 
Oliver's  Case,  17  Ala.  587;  Cases  on  Self-Def.  901,  867;  Bish.  Stat. 
Cr.  §  139.  The  stealing  of  a  hog,  a  sheep,  or  a  goat  is,  under  our 
statute,  a  felony,  without  regard  to  the  pecuniary  value  of  the  animal. 
So  would  be  the  larceny  of  a  single  ear  of  corn,  which  is  "a  part  of 
any  outstanding  crop."  Code  1876,  §  4358;  Acts  1880-81,  p.  47. 
It  would  be  shocking  to  the  good  order  of  government  to  have  it  pro-' 
claimed,  with  the  sanction  of  the  courts,  that  one  may  in  the  broad 
daylight  commit  a  willful  homicide  in  order  to  prevent  the  larceny 
of  an  ear  of  corn.  In  our  judgment  the  fifth  charge  requested  by  the 
defendant  was  properly  refused. 

It  cannot  be  questioned,  however,  that  if  there  was  in  truth  a  larceny 
of  the  prisoner's  horse,  he  or  any  other  private  person  had  a  lawful 
right  to  pursue  the  thief  for  the  purpose  of  arresting  him  and  of  re- 
capturing the  stolen  property.  Code  1876,  §§  4668-4670;  1  Bish. 
Cr.  Proc.  §§  164,  165.  He  is  not  required  in  such  case  to  inform 
the  party  fleeing  of  his  purpose  to  arrest  him,  as  in  ordinary  cases. 


238  THE   CRIMINAL  ACT.  (Cll.   6 

Code  1876,  §  4669.  And  he  could,  if  resisted,  repel  force  with  force, 
and  need  not  give  back  or  retreat.  If  under  such  circumstances  the 
party  making  resistance  is  unavoidably  killed,  the  homicide  would  be 
justifiable.  2  Bish.  Cr.  Law,  §  647;  1  Russ.  Cr.  665;  State  v.  Roane, 
13  N.  C.  58.  If  the  prisoner's  purpose  was  honestly  to  make  a  pur- 
suit, he  would  not  for  this  reason  be  chargeable  with  the  imputation 
of  having  wrongfully  brought  on  the  difficulty;  but  the  law  would 
not  permit  him  to  resort  to  the  pretense  of  pursuit  as  a  mere  color- 
able device  beneath  which  to  perpetrate  crime. 

There  are  some  other  questions  raised  in  the  record  which  we  do 
not  think  necessary  to  discuss.  The  judgment  of  the  circuit  court 
must  be  reversed,  and  the  cause  remanded  for  a  new  trial.  In  the 
meanwhile  the  prisoner  will  be  retained  in  custody  until  discharged 
by  due  process  of  law. 


IV.    Acts  in  Self-Defense. 

ANONYMOUS. 

(Northampton,  Eyre.  1330.    Fitzh.  Abr.,  Corone,  PI.  284.)  i 

S  being  indicted  for  the  death  of  N,  and  pleading  not  guilty,  the 
A  jury  found  that  S  and  N  quarreled  on  their  way  to  the  public  house, 
and  in  the  course  of  the  quarrel  N  struck  S  with  an  ash  stick  on  the 
head  so  that  he  fell,  and  S  got  up  and  ran  away  as  far  as  he  could 
and  N  followed  S  with  the  stick  in  his  hand  to  kill  him,  if  he  could, 
and  drove  him  to  a  wall  situated  between  two  houses  which  he  could 
in  no  wise  pass ;  and  when  S  saw  that  N  wanted  to  kill  him  with  the 
stick,  and  that  he  could  not  avoid  death  unless  he  defended  himself. 
he  took  a  certain  poleaxe  and  struck  N  with  it  on  the  head,  of  which 
N  immediately  died,  and  the  said  S  immediately  after  fled  as  far  as 
he  could.  Wherefore  the  jurors  said  that  S  killed  N  in  self-defense, 
and  not  by  felony  or  of  malice  aforethought,  and  that  he  could  not 
otherwise  escape  from -death.  Therefore  S  is  remitted  to  prison  to 
wait  for  the  mercy  of  the  king  in  the  custody  of  the  sheriff.  His 
chattels  xx.  s.,  whereof  the  sheriff  is  to  answer,  and  then  S  is  to  pur- 
chase a  pardon  etc.2 

i  The  translation  Is  that  Riven  in  3  Stephen's  Hist.  Cr.  L.  38. 
2Compare  Roberts'  Case,   Bel.   P.  O.  (Sel.  Boc.),  pi.  TO  (1208),  In  which  It 
appears  thai  there  is  doufrl  al   this  time  as  to  what  is  to  be  done  with  one 

who  kills  In  self  defense.     The  Mirror  (page  157)  mentions  :is  one  of  the  abuses 

"tli;:t  .,  ,,,;,,,  ui,,,  baa  committed  homicide  of  necessity,  or  for  tiio  peace,  or 
in  Belf-defense,  is  taken  or  detained  until  be  bas  purchased  the  king's  charter 
•»r  pardon,  just  ;is  thougb  it  were  a  case  of  misadventure.M 


A 


■ 

■ 

■ 


G«*^wkWu»r* '     ^/'  WL  c  \-r*,^  .  Jfofy  }  x-i$  fa>  $0\f 


Sec.  3)  AUTHORIZED  ACTS.  239 

FLOYD  v.  STATE. 
(Supreme  Court  of  Georgia,  1867.    36  Ga.  91,  91  Am.  Deo.  760.) 

Indictment  for  stabbing.  Motion  for  new  trial.  Decided  by  Judge 
Holt,  Burke  superior  court,  November  term,  1860. 

Floyd  stood  conversing  with  the  two  Messrs.  Brinson.  He  had 
open  in  his  hand  such  a  knife  as  farmers  carry,  and  was  perhaps 
whittling  or  cleaning  his  finger  nails. 

Whilden  approached  and  asked  Floyd  if  he  had  been  accusing 
him  of  collecting  money  for  his  (Floyd's)  slave  and  stealing  it.  Floyd 
said  he  did.  Immediately  Whilden  struck  Floyd  with  his  fist,  and 
Floyd  stabbed  him,  and,  pursuing  Whilden,  who  walked  backward, 
continued  stabbing  him. 

Whilden  drew  his  knife.  Floyd  ran.  Whilden  caught  him  and 
stabbed  him.  An  interval  occurred,  while  each  was  examining  his 
wounds.  Whilden  got  an  ax  helve,  ran  after  Floyd  (who  retreated), 
and  beat  him.1 

Harris,  J.  The  general  rule  in  criminal  law  in  reference  to  assaults 
made  on  a  person,  and  how  they  may  be  repelled  defensively,  is  that 
contained  in  the  charge  of  Judge  Holt  to  the  jury  which  tried  this  in- 
dictment: "That  whether  the  stabbing  by  plaintiff  in  error  amounted 
to  self-defense  depended  on  the  nature  and  violence  of  the  assault 
made  on  him."  In  this  case  the  plaintiff  in  error  received  a  blow  with 
the  fist  of  the  assailant.  As  it  does  not  appear  by  the  record  that 
there  was  great  superiority  in  physical  strength  on  the  part  of  the 
assailant  over  that  possessed  by  Floyd,  nor  it  appearing  that  Floyd 
was  in  ill  health  at  the  time,  nor  other  circumstance  existing  at  the 
time  which  produced  relatively  great  inequality  between  them  for  sud- 
den combat,  we  are  not  able  to  find  any  fact  in  the  case  which  could 
justify  him  in  repelling  the  blow  of  the  fist  by  the  use  of  his  knife.  As 
a  general  rule  it  may  safely  be  asserted  that  the  law  will  not  excuse 
or  justify  a  man  who  repels  a  blow  given  him  with  the  fist  by  stabbing 
the  assailant. 

Judgment  affirmed. 


GOODALL  v.  STATE. 

(Supreme  Court  of  Oregon,  1861.    1  Or.   333,  80  Am.  Dec.  396.) 

Boice,  J.2  The  next  question  in  this  case  arises  on  the  several  in-, 
structions  of  the  judge  as  to  what  would  justify  the  taking  of  life  ini 
self-defense,  and  all  there  is  on  the  subject  in  the  instructions  may  be' 
considered  together.    After  instructing  the  jury  in  the  language  of  the 

i  The  charge  of  the  trial  judge  is  omitted. 

2  Only  so  much  of  the  opinion  as  relates  to  self-defense  is  printed. 


240  THE   CRIMINAL  ACT.  (Ch.   6 

statute,  the  court  said:  "To  justify  a  killing  in  self-defense  it  was 
necessary  that  an  assault  should  have  been  committed  by  the  person 
killed2 ;  that  it  was  not  enough  that  the  party  killed  had  a  pistol  in  his 
hand,  but  that  there  must  have  been  a  presentation  of  it,  or  some  dem- 
onstration of  shooting."  The  court  also  said  that  "the  having  a  drawn 
pistol  in  his  hand  by  deceased  would  not  be  enough,  although  deceased 
had  threatened  to  take  the  life  of  the  prisoner,  and  these  threats  had 

v,     been  communicated  to  him." 

/T  I  understand,  by  these  instructions,  that  the  court  held  the  law 
to  be  that  an  actual  assault  with  the  pistol  was  necessary  to  justify 
the  killing,  which  means  that  there  must  have  been  on  the  part  of  the 
deceased  an  attempt  to  shoot  the  prisoner,  and  until  such  attempt 
was  made  the  prisoner  would  not  have  been  justified  in  acting  on  the 
defensive  and  in  shooting  the  deceased,  although  deceased  appeared 
before  him  with  a  drawn  pistol  and  had  threatened  his  life.  If  such 
be  the  law,  then  there  is  no  such  thing  as  available  self-defense — when 
the  assailant  makes  his  attack  with  a  pistol  or  other  kind  of  firearm ; 
for  the  assault  and  discharge  of  the  weapon  are  simultaneous,  or  so 
nearly  so,  that  resistance  would  be  almost  impossible.  Suppose  A. 
who  has  threatened  the  life  of  B.,  appears  to  B.  suddenly,  at  the  house 
of  the  latter,  at  an  unusual  place,  armed  with  a  gun,  and  in  a  threaten- 
ing attitude,  and  B.,  induced  by  the  previous  threats  and  unusual  ap- 
pearance of  his  adversary,  and  believing  his  own  life  in  imminent 
danger,  and  having  himself  a  pistol,  shoots  A.  and  kills  him,  before 
A.  actually  makes  an  attempt  to  level  his  gun.  Would  this  be  mur- 
der? I  think  not.  Such  a  case,  unchanged  by  other  evidence  than 
the  killing,  would  lack  all  indications  of  malicious  intent,  which  is 
necessary  to  constitute  murder. 

If  B.  under  such  circumstances,  acting  from  appearances,  and  be- 
lieving that  he  was  in  actual  and  imminent  danger  of  death  or  great 
bodily  harm,  should  kill  A.,  I  think  he  would  be  justified.  By  the  com- 
mon law  one  acting  from  appearances  in  such  a  case,  and  believing 
the  apparent  danger  imminent,  would  be  justified,  though  it  afterwards 
turned  out  that  there  was  no  real  danger,  and  that  the  gun  of  the  as- 
sailant was  only  loaded  with  powder.  This  is,  certainly,  as  strong  a 
case  for  justification  as  when  one,  alarmed  in  the  night  by  the  cry  of 
thieves,  rushes  forth  in  the  dark,  and  by  mistake  kills  an  innocent 
person;  and  in  such  a  case  the  slayer  would  he  excused  at  common 
law.  Such  was  the  dictum  in  the  Levett  Case,  which  has  been  ap- 
proval by  the  English  commentators.  1  East,  P.  C.  274;  1  Russell 
on  Crimes,  669. 

hi  the  ca  e  bi  fore  US  there  was  evidence  tending  to  show  that  when 
the  prisoner  first  saw  deceased,  at  the  time  the  fatal  shots  were  dis- 

2  In  Boy  v.  State,  <;:>  Net*  516,  no  n.  w.  228  (1908),  It  was  held  that  a 

person  attacked  or  Formidably  threatened  by  three  persons  may  avail  himself 

nf  the  rlghl  of  Belf-defense  by  using  commensurate  force  againsl  the  nearest 

a  i  ia  nt,  although  it  is  nut  from  him,  bul  from  the  others,  that  harm  Is  feared. 


Sec.  3)  AUTHORIZED    ACT8.  241 

charged,  deceased  had  a  pistol  in  his  hand  and  was  standing  on  the 
doorstep  of  the  prisoner's  private  room,  which  was  an  unusual  place 
for  one  who  had  threatened  the  prisoner's  life,  and  whom  he  consid- 
ered his  enemy.  And  I  think  the  court  should  have  instructed  the 
jury  that  if  they  believed,  from  the  evidence  in  the  case,  that  there  was 
reasonable  ground  for  Goodall  to  believe  his  life  in  danger,  or  that 
he  was  in  danger  of  great  bodily  harm  from  the  deceased,  and  that 
such  danger  was  imminent,  and  he  did  so  believe,  and,  acting  on  such 
belief,  killed  the  deceased,  he  was  excusable,  and  that  it  was  not  nec- 
essary that  he  should  wait  until  an  assault  was  actually  committed. 

The  whole  doctrine  of  self-defense  was  most  ably  examined  and 
illustrated  in  the  case  of  Thomas  O.  Selfridge,  tried  in  the  Supreme 
Court  of  Massachusetts ;  and  the  doctrines  of  that  case  were  adopted 
in  the  state  of  New  York  in  the  case  of  Shorter  v.  People,  2  N.  Y. 
193,  51  Am.  Dec.  286,  where  it  is  declared  by  Bronson,  J.,  in  speak- 
ing of  the  same  case,  "that  when,  from  the  nature  of  the  attack,  there 
is  reasonable  ground  to  believe  that  there  is  a  design  to  destroy  his 
life,  or  commit  any  felony  upon  his  person,  the  killing  the  assailant 
will  be  excusable  homicide,  although  it  should  afterwards  appear  that 
no  felony  was  intended."  "To  this  doctrine,"  says  the  learned  judge, 
"I  fully  subscribe.  A  different  rule  would  lay  too  heavy  a  burden  on 
poor  humanity."  He  further  says  that  the  authority  of  the  Selfridge 
Case  was  followed  by  the  revisors  in  framing  the  statutes  of  New 
York  touching  this  question.  And  our  statute  is  a  copy  of  the  New 
York  statute,  and,  if  the  doctrine  is  properly  applicable  there,  then  it 
is  applicable  here  also.3 

As  to  what  will  constitute  reasonable  grounds  of  belief  in  such 
cases,  sufficient  to  justify  taking  life,  must  depend,  to  a  considerable 
extent,  on  the  circumstances  of  each  particular  case.  And  the  rea- 
sonableness of  the  appearances  under  which  a  party  claims  to  justify 
may  very  properly  be  left  to  a  jury,  under  the  instructions  of  the  court. 
And  I  think  it  is  going  too  far  to  lay  down  the  general  rule  that  an 
actual  assault  must  be  committed ;  for  such  a  rule  would  take  away, 
or  at  least  render  almost  unavailable,  the  right  of  self-defense  when 
firearms  are  used. 

It  is  also  assigned  as  error  that  the  court  instructed  the  jury  "that, 
killing  being  admitted  by  the  accused,  it  devolved  on  him  to  prove  that 
he  was  justifiable."  I  think  this  instruction  in  conformity  with  the 
common  law ;  but  it  is  not  necessary  to  examine  the  common-law  au- 
ihorities  on  this  subject,  for  our  statute,  in  the  fourth  section  of  the 
third  chapter,  provides:  "There  shall  be  some  other  evidence  of  malice 
than  the  mere  proof  of  killing,  to  constitute  murder  in  the  first  or 
second  degree."     This,  I  think,  is  conclusive  on  this  subject;    for  it 

s  Accord:  Murray  v.  Commonwealth.  79  Pa.  311  (1875);  People  v.  Flahave, 
58  Cal.  249  (1881) ;  State  v.  Jones,  29  S.  C.  201.  7  S.  E.  296  (18SS)  ;  Keith 
v.  State,  97  Ala.  32,  11  South.  914  (1892) ;  Enri<?ht  v.  People.  155  111.  32,  39 
N.  E.  561  (1895) ;    Godwin  v.  State,  73  Miss.  873,  19  South.  712  (1S96). 

Mik.Cr.L.— 16 


242  THE   CRIMINAL   ACT.  (Ch.   6 

was  the  evident  intention  of  the  Legislature,  by  this  statute,  to  impose 
on  the  prosecution  some  further  burden  than  the  mere  proof  of  the 
killing-  to  establish  the  malice,  which,  under  our  statute,  is  not  to  be 
presumed. from  the  mere  proof  of  the  killing-,  and  I  think  the  instruc- 
tion of  the  court  was  error. 

There  is  another  ground  of  error  assigned,  which  is  that  the  court 
erred  in  permitting  the  declarations  of  Potts  to  be  given  in  evidence, 
made  to  his  son  prior  to  the  killing,  and  declaring  the  reason  why 
he  was  going  to  the  house  of  Aldrich,  where  he  was  killed.  I  think 
this  evidence  was  improperly  admitted,  and  that  the  only  declarations 
of  the  deceased  which  are  competent  are  dying  declarations,  or  those 
which  are  a  part  of  the  res  gestae. 

Judgment  is  reversed.4 


ROWE  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1S96.     164  U.  S.    546,  17  Sup.  Ct.  172, 

41  L.  Ed.  547.) 

Mr.  Justice  Harlan,  after  stating  the  case  as  above  reported,  de- 
livered the  opinion  of  the  court.6 

We  think  that  these  portions  of  the  charge  (to  which  the  accused 
duly  excepted)  were  well  calculated  to  mislead  the  jury.  They  ex- 
pressed an  erroneous  view  of  the  law  of  self-defense.  The  duty  of 
the  jury  was  to  consider  the  case  in  the  light  of  all  the  facts.  The 
evidence  on  behalf  of  the  government  tended  to  show  that  the  ac- 
cused sought  a  difficulty  with  some  one;  that  on  behalf  of  the  ac- 
cused would  not  justify  any  such  conclusion,  but  rather  that  he  had 
the  reputation  of  being  a  peaceable  and  law-abiding  man.  But  the 
evidence  on  both  sides  was  to  the  effect  that  the  deceased  used  lan- 
guage of  an  offensive  character  for  the  purpose  of  provoking  a  diffi- 
culty with  the  accused,  or  of  subjecting  him  to  the  indignity  of  a 
personal  insult.  The  offensive  words  did  not,  it  is  true,  legally  justi- 
fy the  accused  in  what  he  did — the  evidence  of  the  government  tend- 
ing to  show  that  "he  kicked  at  deceased,  hitting  him  lightly  on  the 
lower  part  of  the  leg";  that  on  the  part  of  the  accused  tending  to 
show  that  he  "kicked  at"  the  deceased  and  "probably  struck  him 
lightly."  According  to  the  evidence  of  the  defense,  the  accused 
then  "stepped  back,  and  leaned  up  against  the  counter,"  indicating 
thereby,  it  may  be,  that  he  neither  desired  nor  intended  to  pursue 
the  matter  further.  If  the  jury  believed  the  evidence  on  behalf  of  the 
defense,  they  mighl   n  have  inferred  from  the  actions  of  the 

thai  he  did  not  intend  to  make  a  violent  or  dangerous  per- 

« Compare  Lander  v.  state,  12  Tex.  462  (1854);  Bohannon  v.  Cnmmon- 
wealtta,  s  Bash  (Ky.)  481.  8  Am.  Rep.  471  (1871);  Stoneman  v.  Common- 
wealth,  26  Grat  fv*a.)  887  (1874);   State  v.  Brons,  86  Mo.  r>74  (1877). 

*  Part  of  thl.s  ruse  Is  omitted. 


Sec.  3)  AUTHORIZED   ACTS.  243 

sonal  assault  upon  the  deceased,  but  only,  by  kicking  at  him  or  kick- 
ing him  lightly,  to  express  his  indignation  at  the  offensive  language 
of  the  deceased.  It  should  have  been  submitted  to  the  jury  whether 
the  act  of  the  accused  in  stepping  back  and  leaning  against  the  coun- 
ter, not  in  an  attitude  for  personal  conflict,  was  intended  to  be,  and 
should  have  been  reasonably  interpreted  as  being,  a  withdrawal  by 
the  accused  in  good  faith  from  further  controversy  with  the  deceased. 

If  the  accused  did  in  fact  withdraw  from  the  combat,  and  intended 
so  to  do,  and  if  his  conduct  should  have  been  reasonably  so  interpret- 
ed by  the  deceased,  then  the  assault  of  the  latter  with  a  deadly  weapon, 
with  the  intent  to  take  the  life  of  the  accused  or  to  do  him  great  bod- 
ily harm,  entitled  the  latter  to  the  benefit  of  the  principle  announced 
in  Beard  v.  United  States,  158  U.  S.  550,  564,  15  Sup.  Ct.  962,  39 
L.  Ed.  1086,  in  which  case  it  was  said :    "The  defendant  was  _whex£_ — 
he  had  a  right  to  be  when  the  deceased  advanced  upon  him  in  a 
threatening  manner  and  with  a  deadly  weapon;    and  if  the  accused__ 
did  not  provoke  the  assault,  and  had  at  the  time  reasonable  grounds 
to  believe,  and  in  good  faith  believed,  that  the  deceased  intended  TcT_ 
take  his  life  or  to  do  him  great  bodily  harm,  he  was  not  obliged  to 
retreat,  nor  to  consider  whether  he  could  safely  retreat,  but  was  ErF 
titled  to  stand  his  ground  and  meet  any  attack  made  upon  him  witrTa 
deadly  weapon,  in  such  a  way  and  with  such  a  force  as,  under  all  tfi£__ 
circumstances,  he  at  the  moment  honestly  believed,  and  had  reasojv-__ 
able  grounds  to  believe,  was  necessary  to  save  his  own  life  or  to  pro-\  - 
tect  himself  from  great  bodily  injury."  ~/\ 

The  charge,  as  above  quoted,  is  liable  to  other  objections.  The 
court  said  that  both  the  accused  and  the  deceased  had  a  right  to  be 
in  the  hotel,  and  that  the  law  of  retreat  in  a  case  like  that  is  different 
from  what  it  would  be  if  they  had  been  on  the  outside.  Stilh^Jhe^ 
court  said  that,  under  the  circumstances,  both  parties  were  under  a 
duty  to  use  all  reasonable  means  to  avoid  a  collision  that  would  lead__ 
to  a  deadly  conflict,  such  as  keeping  out  of  the  affray,  or  by  notjgo- 
ing  into  it,  or  "by  stepping  to  one  side" ;  and  if  the  accused  could 
have  saved  his  life,  or  protected  himself  against  great  bodily  harm, 
by  inflicting  a  less  dangerous  wound  than  he  did  upon  his  assailant, 
or  "if  he  could  have  paralyzed  that  arm,"  without  doing  more  serious 
injury,  the  law  commanded  him  to  do  so.  In  other  words,  accord- 
ing to  the  theory  of  the  charge,  although  the  deceased  sprang  at  the 
accused,  with  knife  in  hand,  for  the  purpose  of  cutting  him  to  pieces, 
yet  if  the  accused  could  have  stepped  aside,  or  paralyzed  the  arm  of 
his  assailant,  his  killing  the  latter  was  not  in  the  exercise  of  the  right 
of  self-defense.  The  accused  was  where  he  had  the  right  to  be,  and 
the  law  did  not  require  him  to  step  aside  when  his  assailant  was 
rapidly  advancing  upon  him  with  a  deadly  weapon.  The  danger  in 
which  the  accused  was,  or  believed  himself  to  be,  at  the  moment  he 
fired,  is  to  some  extent  indicated  by  the  fact,  proved  by  the  govern- 
ment, that  immediately  after  he  disabled  his  assailant  (who  had  twe 


244  THE   CRIMINAL   ACT.  (Cll.   6 

knives  upon  his  person)  he  said  that  he  (the  accused)  was  himself 
mortally  wounded  and  wished  a  physician  to  be  called.  The  accused 
was  entitled,  so  far  as  his  right  to  resist  the  attack  was  concerned,  to 
remain  where  he  was,  and  to  do  whatever  was  necessary,  or  what  he 
had  reasonable  grounds  to  believe  at  the  time  was  necessary,  to  save 
his  life  or  to  protect  himself  from  great  bodily  harm ;  and  under  the 
circumstances  it  was  error  to  make  the  case  depend  in  whole  or  in 
part  upon  the  inquiry  whether  the  accused  could,  by  stepping  aside, 
have  avoided  the  attack,  or  could  have  so  carefully  aimed  his  pistol 
as  to  paralyze  the  arm  of  his  assailant  without  more  seriously  wound- 
ing him. 

Without  referring  to  other  errors  alleged  to  have  been  committed, 
the  judgment  below  is  reversed,  and  the  case  is  remanded  for  a  new 
trial. 

Reversed. 

Mr.  Justice  Brown  and  Mr.  Justice  Pcckham  dissented. 


STATE  v.  GARDNER. 


(Supreme  Court  of  Minnesota,  1905.     9G  Minn.  318,  104  N.  W.  971,  2  L.  R. 

A.  [N.  S.]  49.) 

Jaggard,  J.,1  delivered  the  opinion  of  the  court. 

The  assignments  of  error  raise  many  questions  as  to  the  correct- 
ness of  the  charge  of  the  court.  The  court  charged,  inter  alia:  "But 
to  justify  the  taking  of  human  life  in  self-defense  it  must  appear  from 
all  the  evidence  that  the  defendant  not.  only  really  and  in  good  faith 
endeavored  to  avoid  an  encounter  and  to  escape  from  his  assailant 
before  the  fatal  shot  was  fired.  *  *  *  The  right  to  defend  him- 
self by  taking  the  life  of  his  assailant  would  not  arise  until  the  de- 
fendant had  at  least  attempted  to  avoid  the  necessity  of  such  an  act; 
but  in  this  connection  I  also  charge  you  that  when  he  is  assailed  or 
threatened  he  is  not  necessarily  bound  to  retreat,  and  whether,  under 
the  circumstances  of  this  case,  the  defendant  was  justified  in  doing 
what  he  did,  is  a  matter  for  you  to  determine,  and  not  for  the  court  to 
decide."     We  are  of  the  opinion  that  this  charge  was  erroneous  in  it- 

[f  |  Perkins  v.  State,  78  Wis.  551,  47  N.  W.  827;  Shell  v.  State, 
88  Ala.  11,7  South.  10),  and  was  not  applicable  to  the  facts  proved. 
The  common-law  doctrine  of  "retreat  to  the  wall"  is  thus  referred  to 
in  a  frequently  quoted  paragraph  from  Coke  (3  Inst.  55) :  "Some 
be  voluntary,  and  yet  being  done  upon  an  inevitable  cause  are  no 
fdony;  as  if  A.  be  assaulted  by  B.,  and  they  fight  together,  and  bc- 
e  any  mortal  blow  given,  A.  givetli  back  until  he  cometh  unto  a 
.  wall,  or  other  strait,  beyond  which  lie  cannot  pass,  and  then,  in 

»  i'urt  of  the  opinion   Is  omitted. 


Sec.  3)  AUTHORIZED   ACTS.  245 

his  own  defense  and  for  safeguard  of  his  own  life,  killeth  the  other; 
this  is  voluntary,  and  yet  no  felony."  The  rule  on  this  subject  has 
tended  in  some  American  jurisdictions  to  be  enforced  with  strictness; 
in  others,  to  be  largely  modified,  in  accordance  with  changed  condi- 
tions, and,  indeed,  to  be  positively  relaxed.  See  State  v.  Matthews, 
148  Mo.  185,  71  Am.  St.  Rep.  598,  49  S.  W.  1085 ;  Runyan  v.  State. 
57  Ind.  80,  84,  26  Am.  Rep.  52.  In  a  leading  case  (Erwin  v.  State, 
29  Ohio  St.  186,  23  Am.  Rep.  733),  after  a  review  of  the  common- 
law  authorities,  in  consequence  of  this  confusion  in  the  later  cases, 
the  court,  inter  alia,  said:  "The  question  then,  is  simply  this:  Does 
the  law  hold  a  man  who  is  violently  and  feloniously  assaulted  respon- 
sible for  having  brought  such  necessity  upon  himself,  on  the  sole 
ground  that  he  failed  to  fly  from  his  assailant  when  he  might  have 
safely  done  so?  The  law,  out  of  tenderness  for  human  life  and  the 
frailties  of  human  nature,  will  not  permit  the  taking  of  it  to  repel  a 
mere  trespass,  or  even  to  save  life  where  the  assault  is  provoked ;  but 
a  true  man,  who  is  without  fault,  is  not  obliged  to  fly  from  an  as- 
sailant, who  by  violence  or  surprise  maliciously  seeks  to  take  his 
life  or  do  him  enormous  bodily  harm."  The  Supreme  Court  of  the 
United  States  approved  of  this  rule  and  of  Runyan  v.  State,  supra, 
in  1895,  in  Beard  v.  United  States,  158  U.  S.  550,  39  L.  Ed.  1086, 
15  Sup.  Ct.  962. 

In  Rowe  v.  United  States,  164  U.  S.  546,  41  L.  Ed.  547,  17  Sup.  Ct. 
172,  the  defendant,  a  Cherokee  Indian,  had  an  altercation  with  the 
deceased  at  a  hotel.  After  a  quarrel  at  the  supper  table  the  accused 
swore  at  the  deceased  and  kicked  him.  The  accused  then  leaned 
up  against  the  counter,  as  if,  according  to  his  own  testimony,  he  had 
abandoned  the  controversy.  Immediately  the  deceased  sprang  at 
him  with  a  knife,  cutting  him.  Thereupon  the  accused  shot  and  kill- 
ed his  assailant.  The  trial  court  charged  in  a  carefully  qualified 
way  as  to  the  duty  of  retreat.  Mr.  Justice  Harlan,  inter  alia,  said: 
"The  accused  was  entitled,  so  far  as  his  right  to  resist  the  attack  was 
concerned,  to  remain  where  he  was,  and  to  do  whatever  was  necessa- 
ry, or  what  he  had  reasonable  grounds  to  believe  at  the  time  was  nec- 
essary, to  save  his  life  or  to  protect  himself  from  great  bodily  harm ; 
and,  under  the  circumstances,  it  was  error  to  make  the  case  depend, 
in  whole  or  in  part,  upon  the  inquiry  whether  the  accused  could,  by 
stepping  aside,  have  avoided  the  attack,  or  could  have  so  carefully 
aimed  his  pistol  as  to  paralyze  the  arm  of  his  assailant,  without  more 
seriously  wounding  him."  This  accords  with  the  general  law  on  the 
subject.  Harbour  v.  State,  140  Ala.  103,  37  South.  330;  People  vv 
Newcomer,  118  Cal.  263,  50  Pac.  405;  State  v.  Cushing,  14  Wash. 
527,  53  Am.  St.  Rep.  883,  45  Pac.  145 ;  Babcock  v.  People,  13  Colo. 
515,  22  Pac.  817;  Brown  v.  Commonwealth,  86  Va.  466,  10  S.  E. 
745;  State  v.  Cain,  20  W.  Va.  679;  State  v.  Evans,  33  W.  Va.  417, 
10  S.  E.  792;  Commonwealth  v.  Selfridge  (1806;  Mass.)  Horr.  & 
T.  Cas  1;  Pond  v.  People,  8  Mich.  150;   People  v.  Macard,  73  Mich. 


1? 


246  THE   CRIMINAL  ACT.  (Cll.   6 

15,  40  N.  W.  784;  State  v.  Bartlett,  170  M6.  658,  59  L.  R.  A.  756, 
71  S.  W.  148;  Willis  v.  State,  43  Neb.  102,  61  N.  W.  254;  25  Am. 
&  Eng.  Enc.  Law  (2d  Ed.)  p.  272,  note  2. 

The  rule  of  law  in  this  state  is  not  inconsistent  with  this  conception 
of  the  duty  to  retreat  so  far  as  is  involved  in  the  case  at  bar. 

The  doctrine  of  ''retreat  to  the  wall"  had  its  origin  before  the  gen- 
eral introduction  of  guns.  Justice  demands  that  its  application  have 
due  regard  to  the  present  general  use  and  to  the  type  of  firearms.  It 
would  be  good  sense  for  the  law  to  require,  in  many  cases,  an  at- 
tempt to  escape  from  a  hand  to  hand  encounter  with  fists,  clubs,  and 
even  knives,  as  a  condition  of  justification  for  killing  in  self-defense; 
while  it  would  be  rank  folly  to  so  require  when  experienced  men,  arm- 
ed with  repeating  rifles,  face  each  other  in  an  open  space,  removed 
from  shelter,  with  intent  to  kill  or  to  do  great  bodily  harm.  What 
might  be  a  reasonable  chance  for  escape  in  the  one  situation  might  in 
the  other  be  certain  death.  Self-defense  has  not,  by  statute  or  by 
judicial  opinion,  been  distorted,  by  an  unreasonable  requirement  of  the 
duty  to  retreat,  into  self-destruction. 

In  the  case  at  bar  one  of  the  theories  of  the  state  was  that  the  de- 
fendant shot  Garrison  while  he  was  at  work  leaning  over  the  poles. 
Tn  this  view  the  charge  as  to  escape  was  not  involved,  and  the  sub- 
ject should  not  have  been  referred  to.  It  became  relevant  only  in 
die  consideration  of  the  defendant's  narrative  of  the  tragedy.  Ac- 
cording to  that  narrative,  the  accused  knew  of  the  threats  made  by 
Garrison  to  kill  him.  Garrison  was  only  30  feet  away  from  his  rifle, 
leaning  against  the  house  or  a  log.  Defendant  had  more  than  100 
paces  to  travel  before  he  could  reach  the  poplars  surrounding  Garri- 
son's curtilage.  An  attempted  retreat  finally  must  have  resulted  in 
exposing  him  to  a  duel  with  a  dead  shot  like  Garrison.  It  would  not 
have  been  reasonable  to  have  required  him  to  have  undertaken  to 
reach  and  take  Garrison's  gun.  Garrison,  the  larger  man,  would,  as 
he  said,  have  broken  him  in  two  before  he  could  have  secured  it  and 
protected  himself.  It  was  apparently  as  dangerous  for  him  to  re- 
treat as  to  stand  his  ground.  Duncan  v.  State,  49  Ark.  543,  547, 
548,  6  S.  W.  164.  To  use  the  expression  of  Chief  Justice  Gilfillan, 
referred  to,  if  the  jury  believed  the  defendant's  narrative,  he  had  no 
"practicable  means  to  avoid  threatened  harm  by  an  attempt  to  escape 
or  retreat.  I  !«•  had  no  reasonable  way  open  to  retreat  without  in- 
creasing his  peril."  Harbour  v.  State,  Supra.  He  had  "come  to  a 
strait."  Coke,  Inst,  supra.  The  fact  that  Gardner  carried  his  gun  did 
not  justify  giving  the  instruction.  His  contention  was  that  this  was 
in  accordance  with  a  natural  and  the  general  custom  of  the  wild  and 

nsettled  wilderness  in  which  he  lived.  Moreover,  as  was  held  in 
^eople  v.  Macard,  supra,  a  person  knowing  his  life  to  be  threaten- 
ed and  bel  himself  to  be  in  danger  of  death  or  great  bodily 
harm,  is  nol  obliged  to  remain  at  home  in  order  to  avoid  an  assault, 
but  may  arm  himself  sufficiently  to  repel  anticipated  attack  and  pur- 


Sec.  3)  AUTHORIZED  ACTS.  247 

sue  his  legitimate  avocation;  and  if,  without  fault,  he  is  compelled  to 
take  life  to  save  himself,  he  may  use  any  weapon  he  may  have  secured 
for  that  purpose,  and  the  homicide  is  excusable.  And  see  Bohannon  v. 
Commonwealth,  8  Bush  (Ky.)  481,  8  Am.  Rep.  474.  It  was  accord- 
ingly reversible  error,  in  any  view  of  the  case,  for  the  trial  court  to 
have  charged  upon  the  subject  of  escape  or  retreat. 

The  judgment  and  order  appealed  from  are  reversed,  and,  in  accord- 
ance with  section  7391,  Gen.  St.  1894,  a  new  trial  is  directed. 


PEOPLE  v.  BUTTON. 

(Supreme  Court  of  California,  1895.     10G  Cal.  G28,  39  Pac.  1073,  28  L.  R.  A. 
591,  46  Am.  St.  Rep.  259.) 

Garoutte,  J.1  The  appellant  was  charged  with  the  crime  of  mur- 
der, and  convicted  of  manslaughter.  He  now  appeals  from  the  judg- 
ment and  order  denying  his  motion  for  a  new  trial. 

For  the  perfect  understanding  of  the  principle  of  law  involved  in 
this  appeal  it  becomes  necessary  to  state  in  a  general  way  the  facts 
leading  up  to  the  homicide.  As  to  the  facts  thus  summarized  there  is 
no  material  contradiction.  The  deceased,  the  defendant,  and  several 
other  parties  were  camped  in  the  mountains.  They  had  been  drinking, 
and,  except  a  boy,  were  all  under  the  influence  of  liquor  more  or  less — 
the  defendant  to  some  extent,  and  the  deceased  to  a  great  extent.  The 
deceased  was  lying  on  the  ground,  with  his  head  resting  upon  a  rock, 
when  a  dispute  arose  between  him  and  the  defendant,  and  the  defend- 
ant thereupon  kicked  or  stamped  him  in  the  face.  The  assault  was  a 
vicious  one,  and  the  injuries  of  deceased  occasioned  thereby  most 
serious.  One  eye  was  probably  destroyed,  and  some  bones  of  the 
face  broken.  An  expert  testified  that  these  injuries  were  so  serious 
as  likely  to  produce  in  the  injured  man  a  dazed  condition  of  mind  im- 
pairing the  reasoning  faculties,  judgment,  and  powers  of  perception. 
Immediately  subsequent  to  this  assault  the  defendant  went  some  dis- 
tance from  the  camp,  secured  his  horse,  returned,  and  saddled  it,  with 
the  avowed  intention  of  leaving  the  camp  to  avoid  further  trouble. 
The  time  thus  occupied  in  securing  his  horse  and  preparing  for  de- 
parture may  be  estimated  at  from  5  to  15  minutes.  The  deceased's 
conduct  and  situation  during  the  absence  of  defendant  is  not  made 
plain  by  the  evidence,  but  he  was  probably  still  lying  where  assaulted. 
At  this  period  of  time,  the  deceased  advanced  upon  defendant  with  a 
knife,  which  was  taken  from  him  by  a  bystander,  whereupon  he  seiz- 
ed his  gun  and  attempted  to  shoot  the  defendant,  and  then  was  him- 
self shot  by  the  defendant  and  immediately  died.  There  is  also  some 
further  evidence  that  deceased  ordered  his  dog  to  attack  the  defend- 

i  Part  of  the  opinion  is  omitted. 


fWM.vi  tv^ 


248  THE   CRIMINAL  ACT.  (Cll.   6 

ant,  and  that  defendant  shot  at  the  dog;    but  this  evidence  does  not 
appear  to  be  material  to  the  question  now  under  consideration. 

Upon  this  state  of  facts  the  court  charged  the  jury  as  to  the  law  of 
the  case,  and  declared  to  them  in  various  forms  the  principle  of  law 
which  is  fairly  embodied  in  the  following  instruction :  "One  who  has 
sought  a  combat  for  the  purpose  of  taking  advantage  of  another  may 
afterward  endeavor  to  decline  any  further  struggle,  and,  if  he  really 
and  in  good  faith  does  so  before  killing  the  person  with  whom  he 
sought  the  combat  for  such  purpose,  he  may  justify  the  killing  on  the 
same  ground  as  he  might  if  he  had  not  originally  sought  such  combat 
for  such  purpose,  provided  that  you  also  believe  that  his  endeavor  was 
of  such  a  character,  so  indicated  as  to  have  reasonably  assured  a  rea- 
sonable man  that  he  was  endeavoring  in  good  faith  to  decline  further 
combat,  unless  you  further  believe  that  in  the  same  combat  in  which 
the  fatal  shot  was  fired,  and  prior  to  the  defendant  endeavoring  to 
cease  further  attack  or  quarrrel,  the  deceased  received  at  the  hands  of 
the  defendant  such  injuries  as  deprived  him  of  his  reason  or  his 
capacity  to  receive  impressions  regarding  defendant's  design  and  en- 
deavor to  cease  further  combat." 

Knowledge  of  the  withdrawal  of  the  assailant  in  good  faith  from 
the  combat  must  be  brought  home  to  the  assailed.  He  must  be  noti- 
fied in  some  way  that  danger  no  longer  threatens  him  and  that  all 
fear  of  further  harm  is  groundless.,  .  Yet,  in  considering  this  ques- 
tion the  assailed  must  be  deemed  a  man  of  ordinary  understanding. 
He  must  be  gauged  and  tested  by  the  common  rule — a  reasonable  man. 
His  acts  and  conduct  must  be  weighed  and  measured  in  the  light  of 
that  test,  for  such  is  the  test  applied  wherever  the  right  of  self-defense 
is  made  an  issue.  His  naturally  demented  condition  will  not  excuse 
him  from  seeing  that  his  assailant  has  withdrawn  from  the  attack  in 
good  faith.  Neither  his  passion  nor  his  cowardice  will  be  allowed  to 
blind  him  to  the  fact  that  his  assailant  is  running  away  and  all  dan- 
ger is  over.  If  the  subsequent  acts  of  the  attacking  party  be  such  as 
to  indicate  to  a  reasonable  man  that  he  in  good  faith  has  withdrawn 
from  the  combat,  they  must  be  held  to  so  indicate  to  the  party  attack- 
ed. Again,  the  party  attacked  must  also  act  in  good  faith.  He  must 
act  in  good  faith  toward  the  law,  and  allow  the  law  to  punish  the 
offender.  He  must  not  continue  the  combat  for  the  purpose  of  wreak- 
ing vengeance,  for  then  he  is  no  better  than  his  adversary.  The  law- 
will  not  allow  him  to  say,  "I  was  not  aware  that  my  assailant  had 
withdrawn  Erom  the  combat  in  good  faith,"  if  a  reasonable  man  so 
placed  would  have  been  aware  of  such  withdrawal.     If  the  party  as- 

iled  has  eyes  to  see  he  must  see,  and  if  he  has  ears  to  hear  he  must 
• .     I  [e  has  no  right  to  close  his  eyes  or  deaden  his  ears. 

This  brings  us  directly  to  the  consideration  of  the  point  in  the 
case  raised  by  the  charge  of  the  court  to  the  jury.  While  the  de- 
ceased had  eyes  to  see  and  ears  to  hear,  he  had  no  mind  to  compre- 
hend, for  his  mind  was  taken  from  him  by  the  defendanl  at  the  fii  »1 

assault.     Throughout  this  whole  affray,   it  must  he  conceded   that   the 


Sec.  3)  AUTHORIZED   ACTS.  24C> 

deceased  was  guilty  of  no  wrong,  no  violation  of  the  law.  When  he 
attempted  to  kill  the  defendant  he  thought  he  was  acting  in  self-de- 
fense, and  according  to  his  lights  he  was  acting  in  self-defense.  To 
be  sure,  those  lights,  supplied  by  a  vacant  mind,  were  dim  and  un- 
satisfactory, yet  they  were  all  the  deceased  had  at  the  time,  and  not 
only  were  furnished  by  the  defendant  himself,  but  the  defendant,  in 
furnishing  them,  forcibly  and  unlawfully  deprived  the  deceased  of 
others  which  were  perfect  and  complete.  But  where  does  the  defend- 
ant stand?  It  cannot  be  said  that  he  was  guilty  of  no  wrong,  no  vio- 
lation of  the  law.  It  was  he  who  made  the  vicious  attack.  It  was  he 
who  was  guilty  of  an  unprovoked  and  murderous  assault.  It  was  he 
who  unlawfully  brought  upon  himself  the  necessity  for  killing  the  de- 
ceased. It  cannot  be  possible  that  in  a  combat  of  this  character  no 
crime  has  been  committed  against  the  law.  Yet  the  deceased  has 
committed  no  offense.  Neither  can  the  defendant  be  prosecuted  for 
an  assault  to  commit  murder,  for  the  assault  resulted  in  the  commis- 
sion of  a  homicide  as  a  part  of  the  affray.  For  these  reasons  we  con- 
sider that  the  defendant  cannot  be  held  guiltless. 

Some  of  the  earlier  writers  hold  that  one  who  gives  the  first  blow 
cannot  be  permitted  to  kill  the  other,  even  after  retreating  to  the  wall, 
for  the  reason  that  the  necessity  to  kill  was  brought  upon  himself.  1 
Hawkins'  Pleas  of  the  Crown,  87.  While  th«  humane  doctrine,  and 
especially  the  modern  doctrine,  is  more  liberal  to  the  assailant,  and 
allows  him  an  opportunity  to  withdraw  from  the  combat,  if  it  is  done 
in  good  faith,  yet  it  would  seem  that  under  the  circumstances  here 
presented  the  more  rigid  doctrine  should  be  applied.  The  defend- 
ant not  only  brought  upon  himself  the  necessity  for  the  killing,  but, 
in  addition  thereto,  brought  upon  himself  the  necessity  of  killing  a 
man  wholly  innocent  in  the  eyes  of  the  law;  not  only  wholly  inno- 
cent as  being  a  person  naturally  non  compos,  but  wholly  innocent  by 
being  placed  in  this  unfortunate  condition  of  mind  by  the  act  of  the 
defendant  himself.  We  conclude,  therefore,  that  the  instruction  con- 
tains a  sound  principle  of  law.  The  defendant  was  the  first  wrong- 
doer. He  was  the  only  wrongdoer.  He  brought  on  the  necessity  for 
the  killing,  and  cannot  be  allowed  to  plead  that  necessity  against  the 
deceased,  who  at  the  time  was  non  compos  by  reason  of  defendant's 
assault.  The  citations  we  have  taken  from  Hale,  the  Ohio  case,  and 
the  Nevada  case,  all  declare  that  the  assailant  must  notify  the  assailed 
of  his  withdrawal  from  the  combat  in  good  faith  before  he  will  be 
justified  in  taking  life.  Here  the  defendant  did  not  so  notify  the  de- 
ceased. He  could  not  notify  him,  for  by  his  own  unlawful  act  he 
had  placed  it  out  of  his  power  to  give  the  deceased  such  notice.  Un- 
der these  circumstances  he  left  no  room  in  his  case  for  the  plea  of 
self-defense. 

For  the  foregoing  reasons,  the  judgment  and  order  are  reversed, 
and  the  cause  remanded  for  a  new  trial. 

Beatty,  C.  J.,  and  Harrison,  McFarland,  and  Van  Fleet,  JJ., 
concurred. 


250  THE   CRIMINAL  ACT.  (Ch.   6 

MIERS  v.  STATE. 

(Court  of  Criminal  Appeals  of  Texas,  1895.     34  Tex.  Cr.  R.  161,  29  S.  W. 
1074,  53  Am.  St.  Rep.  705.) 

Hurt,  P.  J.1  That  the  arrest  was  illegal  is  not  questioned.  The 
court  so  instructed  the  jury.  Being  an  illegal  arrest,  what  were  the 
rights  of  the  accused  under  the  circumstances?  Being^without  capias 
in  this  case,  the  deceased,  a  constable,  had  no  right  to  arrest  the 
appellant,  and  in  making  the  arrest  was  a  trespasser,  and  the  appellant 
had  the  right  to  resist  by  force,  using  no  more  than  was  necessary 
to  resist  the  unlawful  acts  of  the  officer.  An  officer  who  acts  without 
proper  authority,  and  the  person  doing  the  same  act  who  is  not  an 
officer,  stand  on  the  same  footing;  and  any  third  person  may  lawfully 
interfere  to  prevent  an  illegal  arrest,  doing  no  more  than  is  necessary 
for  that  purpose.  West  v.  Cabell,  153  U.  S.  78,  14  Sup.  Ct.  752, 
38  L.  Ed.  643;  Commonwealth  v.  Crotty,  10  Allen  (Mass.)  404,  405, 
87  Am.  Dec.  669.  If  deceased,  Burnett,  had  no  right  to  arrest  appellant, 
and  if  in  so  doing  he  was  a  trespasser,  had  he  the  right  to  retain  him 
in  custody?  Does  the  fact  that  appellant  yielded,  without  resistance, 
or  without  protesting  against  the  trespass,  make  the  arrest  legal? 
Does  this  fact  deprive  the  man  falsely  imprisoned  of  the  right  to  as- 
sert his  rights  and  regain  his  liberty,  or  convert  in  some  mysterious 
manner  the  trespass  into  a  lawful  act?  The  affirmative  of  these  ques- 
tions has  no  support  in  principle  or  reason.  Being  wrongfully  and  il- 
legally deprived  of  his  liberty,  appellant  had  the  same  right  to  regain  it, 
and  right  to  use  the  same  means,  force,  or  resistance,  as  he  had  in  pre- 
venting an  illegal  arrest.  Being  falsely  imprisoned,  he  had  the  right 
to  his  liberty,  and,  for  the  purpose  of  obtaining  it,  could  use  all  force 
necessary  for  that  purpose,  taking  care  to  use  no  more  than  was 
required.  What  degree  of  violence  is  necessary  always  depends 
upon  that  used  or  attempted  by  his  adversary.  To  illustrate:  A.  is 
illegally  arrested,  and  attempts  to  regain  his  liberty.  His  adversary 
proposes   to  prevent  this  by  the  use   of  deadly   weapons.     A.   may 

ort  to  such  weapons.  A.  flees  from  such  arrest  The  officer  pre- 
sents, in  a  shooting  position,  his  gun,  demanding  of  him  to  halt.  A. 
can  shoot,  if  it  reasonably  appears  to  him  that  the  officer  will  shoot. 
I '.nt  if  A.  is  unlawfully  arrested,  and,  being  in  no  danger  of  violence 
from  the  officer,  resorts  immediately  to  deadly  weapons  or  great  vio- 
lence  (that  which  is  unnecessary  to  secure  his  liberty),  he  would  not 
be  ju  tified  or  excused.  He  would  be  guilty  (if  he  should  slay  the 
officer)    of  murder  in  the  first   degree,  if  he,  anticipating  the  arrest, 

ould  prepare  himself  with  a  deadly  weapon  and  deliberately  and 
i  almly  form  the  intention  to  kill  the  officer.  Rex  v.  Patience,  7  Car 
&  P.  775;    Reg.  v.  Allen,  17  Law  Times  (N.  S.)  222.     But,  express 

1  Part  <>f  the  opinion  in  omitted. 


Ih^^^otUabJl^  <vn«4^  ^V-; 


Sec.  3)  AUTHORIZED   ACTS.  2ol 

malice  apart,  if  A.  should  use  at  once,  without  first  resorting  to  milder 
means,  greater  force  or  violence  than  was  necessary  to  obtain  his 
liberty,  and  should  kill  the  officer,  he  would  be  guilty  of  manslaughter. 
The  illegal  arrest  being  a  great  provocation,  the  killing  would  be 
attributed  to  the  passion  arising  therefrom.  West  v.  Cabell,  supra, 
and  authorities  there  cited.  In  every  case  in  which  the  defendant 
is  held  guilty  of  manslaughter,  he  used  more  or  greater  violence  or 
force  than  was  necessary  to  prevent  the  arrest  or  regain  his  liberty. 
If  the  accused  used  no  more  force  than  was  necessary,  he  would  be 
guilty  of  no  offense.  Let  us  suppose  that  the  party  slain  (be  he  officer 
or  not)  was  authorized  to  make  the  arrest  and  detain  the  accused. 
If  he  exercises  his  authority  in  a  wanton  and  unnecessary  manner,  he 
becomes  a  trespasser,  and  if  by  his  acts  he  creates  in  the  mind  of  the 
accused  a  reasonable  apprehension  or  fear  of  death  or  great  bodily 
harm  the  homicide  would  be  excusable.  State  v.  Oliver,  2  Houst. 
(Del.)  605,  606.  If  the  officer  has  no  authority  to  arrest,  in  attempt- 
ing or  making  the  arrest,  he  becomes  a  trespasser,  and  stands  on  no 
better  ground  than  a  third  party — than  if  he  were  not  an  officer. 
The  arrest  being  illegal,  he  has  no  right  to  detain  the  prisoner,  and 
hence  no  authority  to  prevent  an  escape,  and  in  preventing  an  escape 
he  would  still  be  a  trespasser,  and  stand  to  the  prisoner  on  the  same 
ground  as  a  private  citizen. 

Appellant  was  illegally  arrested,  and  attempted  to  regain  his  liberty. 
The  deceased,  who  was  a  trespasser,  threw  his  Winchester  upon  him, 
covering  him  with  it.  Appellant  charged  his  gun  while  deceased  was 
covering  him,  and,  he  still  retreating,  deceased,  with  his  gun  still  in 
a  shooting  position,  demanded  of  appellant  to  halt,  when  they  both 
shot,  shooting  at  the  same  time ;  each  receiving  wounds,  and  that  of 
deceased's  proving  mortal.  And  what  is  the  law  applicable  to  this 
case?  The  court  should  have  instructed  the  jury  that  the  arrest  was 
illegal,  and  that  deceased  was  a  trespasser  in  making  the  arrest  and 
detaining  the  prisoner;  that  the  appellant  had  the  right  to  regain  his 
liberty,  and  that  deceased  had  no  right  to  prevent  him;  and  that  if 
deceased,  to  prevent  an  escape,  threw  his  gun  upon  him,  commanding 
him  to  halt,  and  that  appellant,  believing  that  his  life  was  in  danger, 
or  that  he  was  in  danger  of  serious  bodily  injury,  shot  and  killed  the 
deceased,  to  acquit  him.     *     *     * 

Reversed  and  remanded.2 

Henderson,  J.,  concurs.    Davidson,  J.,  absent. 

a  Compare  State  v.  Cantieny,  34  Minn.  1,  24  N.  W.  458  (1SS5). 


252  THE   CRIMINAL   ACT.  (Ch.   $ 

V.    Acts  in  Defense  of  Others. 
SNELL  v.  STATE. 

(Court  of  Appeals  of  Texas,  1890.     29  Tex.  App.  236,  15  S.  W.  722,  25  Am. 

St.  Rep.  723.) 

Willson,  J.1  We  are  of  the  opinion  that  the  evidence  fairly  pre- 
sents the  issue  of  self-defense  as  to  this  defendant.  It  shows  that 
defendant's  brother  was  in  an  angry  and  violent  struggle  with  the 
deceased ;  that  deceased  during  the  struggle  attempted  to  possess  him- 
self of  a  club — a  deadly  weapon — with  the  apparent  intention  of  using 
it  upon  defendant's  brother;  and  it  was  at  this  juncture  that  the  de- 
fendant interposed,  secured  the  club,  and  struck  or  attempted  to 
strike  the  deceased  with  the  same.  Up  to  this  act  of  his  it  does  not 
appear  from  the  evidence  that  he  engaged  in  any  way  in  the  difficulty 
between  his  brother  and  the  deceased.  It  does  not  appear  that  he 
knew  that  his  brother  was  using  or  intending  to  use  a  knife  in  the 
conflict.  It  does  not  appear  that  he  knew  or  had  reason  to  believe 
that  his  brother  intended  to  kill  the  deceased  or  to  inflict  upon  him 
serious  bodily  injury.  On  the  contrary,  the  evidence  tends  to  show 
that  the  appearances  indicated  to  him  that  his  brother  and  the  deceased 
were  merely  engaged  in  a  contest  with  their  fists,  neither  using  or  at- 
tempting to  use  a  deadly  weapon. 

Such  being  the  state  of  the  case,  when  the  deceased  attempted  to 
possess  himself  of  the  club  with  the  apparent  purpose  of  using  the 
same  upon  his  brother,  the  defendant  was  justified  in  interfering  in 
defense  of  his  brother  and  in  securing  the  club,  and  even  in  striking  or 
attempting  to  strike  the  deceased  with  it,  if  necessary  to  prevent  the 
deceased  from  getting  and  using  it.2  It  is  not  the  intent  which  act- 
uated the  defendant's  brother,  but  the  intent  with  which  the  defend- 
/  ant  acted,  which  constitutes  the  criterion  in  passing  upon  the  issue 
of  guilt  in  this  case.  "According  to  his  own  act  and  intent  does  the 
law  measure  him,  and  hold  him  guilty  of  murder,  or  of  manslaughter, 
or  entirely  justifiable,  as  the  facts  may  warrant."  And  the  intent  of 
his  brother  is  immaterial,  unless  it  be  shown  that  the  defendant  knew 
or  might  reasonably  have  known  such  intent.  Guffee  v.  State.  8 
Tex.  App.  187;  Sterling  v.  State,  15  Tex.  App.  219;  Dyson  v.  State. 
11  Tex.  App.  45  1  ;  Poster  v.  State,  8  Tex.  App.  2  IS;  Kemp  v.  State, 
11  Tex.  App.  171;   North  v.  State,  12  Tex.  App.  111. 

Tn  his  charge  to  the  jury  the  learned  trial  judge  did  not  submit  the 
issue  of  self-defense.     No  instruction  whatever  was  given  to  the  jury 

i  Part  of  this  ciisc  is  omitted. 

ord:  Protection  of  servant,  Hathaway  v.  State,  ::■_■  rin.  56,  13  South. 
r,:»'j  (1898);  protection  of  wife  agalnsl  criminal  assault,  Saylor  v.  Common- 
wealth, Hi  Kv.  184,  ::o  s.  w.  :;'.mi  (1885);  protection  of  sisin-  against  abduc- 
tion, Bedford  v.  State,  ::•;  Tex.  Cr.  u.  477,  88  s.  w.  2iu  (1886). 


vTifi  •    r^y  '*-  "^  &*  ^ '  *4**A>  H**  ^  i^a  ^ 


SeC.  3)  AUTHORIZED   ACTS.  2."j.">> 

relating  to  self-defense,  and  because  of  the  omission  to  submit  said 
issue  and  to  properly  instruct  the  jury  in  relation  thereto  the  charge 
of  the  court  is  fundamentally  defective  and  insufficient  (Bell  v.  State, 
17  Tex.  App.  538 ;  Meuly  v.  State,  26  Tex.  App.  274,  9  S.  W.  563, 
8  Am.  St.  Rep.  477),  and  for  this  reason  the  judgment  is  reversed, 
and  the  cause  is  remanded. 
Reversed  and  remanded. 


STATE  v.  GREER. 

(Supreme  Court  of  West  Virginia,  1883.    22  W.  Va.  800.) 

Johnson,  P.1    Instructions  Nos.  5  and  6  are  as  follows: 

"(5)  If  the  jury  believe  from  the  evidence  that  John  M.  Greer, 
the  brother  of  the  prisoner,  was  in  fault,  and  by  his  fault  brought 
about  the  assault  by  the  deceased  upon  him,  said  John  M.  Greer,  then 
said  John  M.  Greer  was  bound  to  retreat  as  far  as  he  could,  unless 
prevented  by  the  fierceness  of  the  attack  threatened  by  the  deceased, 
before  James  A.  Greer,  the  prisoner,  was  justifiable  in  taking  the  life 
of  said  Robert  G.  Maguire  in  order  to  save  the  life  of  John  M.  Greer, 
or  to  protect  him  from  great  bodily  harm. 

"(6)  If  the  jury  believe  from  the  evidence  that  John  M.  Greer,  the 
brother  of  the  prisoner,  provoked  the  deceased  to  make  an  assault 
upon  him,  the  said  John  M.  Greer,  then  said  John  M.  Greer  was 
bound  to  retreat  as  far  as  possible,  consistent  with  his  own  safety 
at  the  time,  before  the  prisoner,  James  A.  Greer,  was  justifiable  in 
killing  the  deceased  to  save  the  life  of  said  John  M.  Greer,  or  to  pro- 
tect him,  said  John  M.  Greer,  from  great  bodily  harm." 

The  right  of  self-defense  may  be  exercised  in  behalf  of  a  brother, 
or  of  a  stranger.  Deitz's  Criminal  Law,  §  126a,  and  cases  cited. 
What  one  may  lawfully  do  in  defense  of  himself,  when  threatened 
with  death  or  great  bodily  harm,  he  may  do  in  behalf  of  a  brother; 
but,  if  the  brother  was  in  fault  in  provoking  an  assault,  that  brother 
must  retreat  as  far  as  he  safely  can,  before  his  brother  would  be 
justified  in  taking  the  life  of  his  assailant  in  his  defense  of  the  brother. 
But  if  the  brother  was  so  drunk  as  not  to  be  mentally  able  to  know  his 
duty  to  retreat,  or  was  physically  unable  to  retreat,  a  brother  is  not 
bound  to  stand  by  and  see  him  killed  or  suffer  great  bodily  harm, 
because  he  does  not  under  such  circumstances  retreat.  It  is  only  the 
faultless  who  are  exempt  from  the  necessity  of  retreating  while  act- 
ing in  self-defense.  Cain's  Case,  supra.  Those  in  fault  must  retreat, 
if  able  to  do  so.  If  from  the  fierceness  of  the  attack  or  for  other 
reasons  they  are  unable  to  retreat,  they  will  be  excused  by  the  law 
for  not  doing  so.  As  a  general  legal  proposition  the  fifth  and  sixth 
instruction  propounded  the  law  correctly ;   but  in  view  of  the  evidence 

i  Part  of  the  opinion  is  omitted. 


254  THE   CRIMINAL   ACT.  (Cll.   & 

in  this  case,  if  the  defense  had  asked  it,  the  instruction  should  have 
been  modified  by  inserting  the  following  words:  "Unless  the  jury  be- 
lieve from  the  evidence  that  the  said  John  M.  Greer  was  so  drunk  as 
to  be  mentally  incapable  of  knowing  that  it  was  his  duty  to  retreat, 
or  physically  unable  to  retreat." 


MORRISON  v.  COMMONWEALTH. 

(Court  of  Appeals  of  Kentucky,  1903.     24  Ky.  Law  Rep.  2493.  74  S.  W.  277.) 

Hobson,  J.1  The  case  comes  to  this :  Did  Morrison,  when  he 
saw  Alex  Dean  committing  an  assault  on  his  sister,  and  pushing  or 
striking  her  against  the  house,  have  a  right  to  intervene  between  the 
brother  and  sister  for  her  protection  from  a  simple  battery?  In  1 
Bishop  on  Criminal  Law,  §  877,  it  is  said:  "The  doctrine  here  is  that 
whatever  one  may  do  for  himself  he  may  do  for  another.  The  com- 
mon case,  indeed,  is  where  a  father,  son,  brother,  husband,  servant, 
or  the  like,  protects  by  the  stronger  arm  the  feebler.  But  a  guest 
in  the  house  may  defend  the  house,  or  the  neighbors  of  the  occupant 
may  assemble  for  its  defense;  and,  on  the  whole,  though  distinctions 
have  been  taken  and  doubts  expressed,  the  better  view  plainly  is  that 
one  may  do  for  another  whatever  the  other  may  do  for  himself."  This 
statement  of  the  law,  as  applied  to  simple  batteries  and  breaches  of 
the  peace,  is  broader  than  it  is  usually  put  in  the  authorities.  Thus, 
in  3  Bl.  Com.  3,  it  is  said :  "The  defense  of  one's  self,  or  the  mutual 
and  reciprocal  defense  of  such  as  stand  in  relations  of  husband  and 
wife,  parent  and  child,  master  and  servant.  In  these  cases,  if  the 
party  himself,  or  any  of  these,  his  relations,  be  forcibly  attacked  in 
his  person  or  property,  it  is  lawful  for  him  to  repel  force  by  force;  and 
the  breach  of  the  peace  which  happens  is  chargeable  upon  him  only 
who  began  the  affray."  In  a  note  to  this'it  is  added:  "When  a  per- 
son does  not  stand  in  either  of  these  relations,  he  cannot  justify  an 
interference  on  behalf  of  the  party  injured,  but  merely  as  an  indiffer- 
ent person  to  preserve  the  peace."  See,  to  the  same  effect,  2  Am.  & 
Eng.  Enc.  Law,  p.  981;    2  Roberson,  Criminal  Law,  §  543. 

When  a  felony  is  apparently  about  to  be  committed,  as  where  there 
is  apparent  danger  of  loss  of  life  by  the  person  assailed,  or  of  great 
bodily  harm  to  him,  a  different  rule  prevails,  and  there  any  third  per- 
son may  lawfully  intervene  for  his  protection,  using  such  means  for 
his  defense  as  the  person  assaulted  himself  may  lawfully  use.  But 
where  the  assault  is  nol  felonious,  and  the  person  intervening  docs  not 
Stand  in  any  of  the  relations  to  the  one  assaulted  excepted  ou1  of  the 
common-law  rule,  then  he  who  intervenes  can  only  act  for  the  preser- 
vation of  the  peace.  He  cannot  come  into  the  difficulty  for  the  pur- 
pose of  taking  the  place  of  the  person  assailed  and  continuing  th< 

1  Pari   of  the  opinion   Is  omitted. 


Sec.  3)  AUTHORIZED   ACTS.  255 

fight.     This  is  the  common-law  rule,  as  we  understand  the  authori- 
ties, and  we  cannot  depart  from  it  or  extend  it. 

It  is  conceded  on  all  hands  that  Morrison  ran  down  on  tiptoe  to 
where  Alex  Dean  and  his  sister  were,  some  90  feet  away.  If,  when 
he  got  there,  he  at  once  stabbed  Dean  in  the  back,  as  stated  by  the 
witnesses  for  the  commonwealth,  he  was  the  aggressor.  The  instruc- 
tion of  the  court,  which  submitted  to  the  jury  the  question  whether 
Morrison  believed,  or  had  reasonable  grounds  to  believe,  himself  in 
danger  of  death  or  great  bodily  harm  at  the  hands  of  Dean,  when  he 
stabbed  him,  was  more  favorable  to  Morrison  than  the  law  warranted, 
as  the  court  did  not  submit  to  the  jury  the  question  whether  Morrison 
was  the  aggressor.  Morrison  knew  that  the  illicit  relations  between 
him  and  Ida  Dean  were  the  foundation  of  the  animosity  of  Alex  Dean 
to  him.  He  also  knew  that  this  was  the  cause  of  the  quarrel  between 
the  brother  and  sister.  With  this  knowledge  he  ran  on  tiptoe  down 
to  where  they  were,  armed  with  a  dirk;  and  if,  as  he  says,  he  caught 
Alex  Dean  by  the  shoulder  and  shoved  them  apart,  saying  to  him, 
"You  can't  beat  her  where  I  am,"  his  interference  was  not  as  an 
indifferent  person  to  preserve  the  peace,  for  his  first  act  was  to  com- 
mit a  battery  on  Alex  Dean  by  taking  him  by  the  shoulder,  and  this 
was  followed  up  by  a  declaration  which  he  could  but  know,  under 
all  the  circumstances,  would  make  Alex  Dean  regard  him  as  an  assail- 
ant. To  hold  that  he  intervened,  under  the  evidence,  as  an  indifferent 
person  to  preserve  the  peace,  would  be  to  give  no  real  effect  to  the 
common-law  rule  allowing  greater  rights  to  parent  and  child,  husband 
and  wife,  master  and  servant,  or  the  like,  than  to  other  persons  in 
cases  of  simple  batteries  or  breaches  of  the  peace.  According  to  his 
own  testimony,  the  manner  of  his  approach,  his  conduct  on  reaching 
Alex  Dean,  and  his  declaration  to  him,  under  the  circumstances,  were 
not  those  of  one  bent  on  peace,  but  of  one  proposing  to  champion  the  . 
woman  and  fight  her  battles  for  her.  He  was,  therefore,  the  aggres- 
sor, and  the  court  did  not  err  in  refusing  to  admit  the  proof  as  to  the 
bad  character  of  Alex  Dean  or  his  previous  threats ;  and  this  evidence, 
if  admitted,  could  not  have  been  of  material  service  to  the  defendant 
under  the  view  of  the  law  which  we  have  indicated,  for  the  jury  might 
have  inferred  that,  when  he  interfered  with  knowledge  of  the  previous 
threats  and  the  character  of  Dean,  he  anticipated  the  result  that  en- 
sued. The  verdict  of  the  jury  finding  him  guilty  of  manslaughter, 
and  fixing  his  punishment  at  11  years  in  the  penitentiary,  seems  to 
have  been  due  to  their  accepting  the  version  of  the  transaction  as 
given  by  the  witnesses  for  the  commonwealth,  and  their  believing  that 
Morrison  acted  in  sudden  heat  on  seeing  the  woman  assailed  by  her 
brother.  

Judgment  affirmed. 

Nunn,  J.,  dissents. 


W^^^t^-tipisrmy.  4^^,,  h^whot^M-.A^^  iZS/fd/, 


256  THE   CRIMINAL  ACT.  (Ch.  6 

VI.  Acts  in  Defense  of  Property. 
HINCHCLIFFE'S  CASE. 

(York  Assizes,   1S23.     1   Lew.   161.) 

Prisoner  was  indicted  for  manslaughter.  It  appeared  that  a  man 
and  his  servant  had  insisted  upon  placing  corn  in  the  prisoner's  barn, 
which  she  refused  to  allow.  They  exerted  force.  A  scuffle  took  place, 
in  which  the  prisoner  received  a  blow  on  the  breast,  whereupon  she 
threw  a  stone  at  the  deceased  (the  master),  who,  falling  down,  was 
taken  up  dead.  A\ 

Per  Holroyd,  J.  "The  case  fails  on  two  accounts,  rt  is  not  proved 
that  the  death  was  causedTT5ylhe~Ww^^&pif1t  had  been,  it  appears 
that  the  deceased  received  it  in  an  attempt  to  invade  her  barn  against 
her  will.  She  had  a  right  to  defend  her  barn,  and  to  employ  such  force 
as  was  reasonably  necessary  for  that  purpose,  and  she  is  not  answer- 
able for  any  unfortunate  accident  that  may  have  happened  in  so  doing." 
Under  his  lordship's  direction,  the  prisoner  was  acquitted,  and  forth- 
with discharged. 


^  flob<  fC /•  STATE  v.  MORGAN. 

(Supreme  Court  of  North  Carolina,  1842.    25  N.  C.  186,  38  Am.  Dec.  714.) 

Gaston,  J.1  Assuming,  then,  that  the  constable  had  wrongfully 
taken  the  gun,  and  that  the  defendant  had  a  right  to  require  its  re- 
turn, and  that  exertion  of  force,  nothing  short  of  that  which  was  be- 
gun on  the  part  of  the  defendant,  would  have  availed  to  compel  its 
return,  in  our  opinion  the  assault  is  not  justified.  It  was  made  with  a 
deadly  weapon,  which,  if  used,  would  have  probably  occasioned  death, 
and  made  without  any  previous  resistance  on  the  part  of  the  officer. 
It  was,  therefore,  an  assault  with  intent  to  kill.  If  this  intent  were  law- 
ful, the  assault  with  that  intent  was  lawful.  If  this  intent  were  un- 
lawful, an  assault  with  that  intent  cannot  stand  justified.     Now,  when 

it  is  said  that  a  man  may  rightfully  use  as  much  force  as  is  necessary 

Qpr  the  protection  of  his  person  or  property,  it  should  be  recollected 
thai  this  rule  is  subject  to  this  most  important  modification:  .that  he 

-- —  1 1 . 1 1 1  not,  except  in  extreme  cases,  endanger  human  life  or  do  great 
bodily  harm.  It  is  not  every  right  of  person,  and  sjjll  lcs^  of  property, 
thai  can  lawfully  be  ai  erted,  or  every  wrong  that  may  rightfully  be 
redn  ed,  by  extreme  remedies.  There  is  a  recklessness,  a  wanton 
di  regard  of  humanity  and  social  duty,  in  taking  or  endeavoring  to  take 
the  life  of  a  fellow  being,  in  order  to  save  one's  self  fr<>m  a  compara- 
tively slight  wrong,  which  is  essentially  wicked,  and  which  the  law  ab- 

I  I 'art  of  thla  ease  Is  omitted. 


Sec.  3)  AUTHORIZED   ACTS.  257 

hors.  You  may  not  kill,  because  you  cannot  otherwise  effect  your  ob- 
ject, although  the  object  sought  to  be  effected  is  right.  You  can  only 
kill  to  save  life  or  limb,  or  prevent  a  great  crime,  or  to  accomplish  a 
necessary  public  duty.  Thus  an'  officer,  acting  under  a  legal  process, 
has  a  right  to  arrest  the  person  against  whom  it  is  directed,  and  retake 
him,  if  he  break  custody;  and  for  such  purpose  he  may  and  ought  to 
use  necessary  force.  Yet,  if  the  process  be  in  a  civil  case,  or  for  a  mis- 
demeanor only,  and  the  officer,  although  he  cannot  otherwise  arrest  or 
retake  his  prisoner,  intentionally  kills  him,  it  is  murder.  1  Hale,  481 ; 
Foster,  271 ;  1  East,  P.  C.  c.  5.  §§  306,  307.  The  purpose  is  indeed 
rightful,  but  it  is  not  one  of  such  paramount  necessity  as  to  justify 
a  resort  to  such  desperate  means.  So  it  is  clear  that  if  one  man  delib- 
erately kills  another  to  prevent  a  mere  trespass  on  his  property,  wheth- 
er that  trespass  could  or  could  not  be  otherwise  prevented,  he  is  guilty 
of  murder.  If,  indeed,  he  had  at  first  used  moderate  force,  and  this 
had  been  returned  with  such  violence  that  his  own  life  was  endangered, 
arl'd  then  he  killed  from  necessity,  it  would  have  been  excusable  homi- 
cide; not  because  he  could  take  life  to  save  property,  but  he  might 
take  the  life  of  the  assailant  to  save  his  own.  If  these  principles  be 
right,  and  we  think  they  cannot  be  contested,  it  would  follow  that,  if 
unfortunately  the  rage  of  the  defendant  in  this  case  had  not  been 
pacified,  and  the  fatal  blow  had  fallen  and  death  ensued,  it  would  have 
been  a  clear  case  of  murder.  If  so,  then  the  assault  made  was  an  as- 
sault with  intent  to  commit  murder.  A  justifiable  assault  with  intent 
to  commit  murder  is  a  legal  solecism. 

This  opinion  must  be  certified  to  the  superior  court  of  Henderson, 
with  instructions  to  render  judgment  for  the  state  upon  the  special 
verdict. 

Per  Curiam.    Ordered  accordingly.* 


VII.  Acts  in  Defense  of  Dwelling.        ,  A*  W»  \  ^  ** 

It  anybody  in  a  case  of  Hamsoken,  which  is  the  invasion  of  a  house       //f  < 
against  the  peace  of  the  king,  defends  himself  in  his  own  house,  and 
the  invader  is  killed,  he  shall  remain  unpersecuted  and  unavenged,  if 
he,  whom  he  invaded,  could  not  otherwise  defend  himself,  for  it  is 
said  he  is  not  worthy  to  enjoy  peace,  who  is  not  willing  to  keep  it. 

Bracton,  f.  144  b. 

2  Accord:     Reg.  v.  Sullivan,  1  Car.  &  M.  118  (1841);  People  v.  Horton,  4 

Mich.  67  (185G) ;    State  v.  Shippey,  10  Minn.  223  (Gil.  178),  SS  Am.  Dec.  70 

(1865);  Davison  v.  People,  90  111.  221  (1878);  Wallace  v.  U.  S.,  162  U.  S    4G6, 

16  Sup.  Ct.  859,  40  L.  Ed.  1039  (1895).     Cf.  People  v.  Payne,  8  Cal.  341  (1857). 

Mik.Cb.L.— 17 


258  THE   CRIMINAL  ACT.  (Ch.   6 

COOK'S  CASE. 
(King's  Bench,  1639.     3  Croke,  537.) 

Cook  was  indicted  for  the  murder  of  Marshal.  Upon  his  arraign- 
ment, he  pleaded  not  guilty;  and  it  was  found,  that  the  said  Marshal 
was  a  bailiff  to  the  sheriff  of  Somerset,  and  had  several  warrants  up- 
on several  capias  ad  satisfaciendum  against  the  said  Cook  and  his 
father,  directed  to  him  and  other  bailiffs ;  and  that  they,  by  virtue  or 
colour  thereof,  entered  into  the  said  Cook's  stable  and  outhouse,  and 
hid  themselves  there  all  night ;  and  at  eight  of  the  clock  the  next  morn- 
ing came  to  Cook's  dwelling-house,  and  called  him  to  open  his  doors 
and  suffer  them  to  enter,  because  they  had  such  warrants  upon  such 
writs,  at  the  suit  of  such  persons,  to  arrest  him,  and  willed  him  to 
obey  them.  But  the  said  Cook  commanded  them  to  depart,  telling 
them,  they  should  not  enter.  And  thereupon  they  brake  a  window, 
and  afterwards  came  to  the  door  of  the  said  house,  and  offered  to 
force  that  open,  and  brake  one  of  the  hinges  thereof.  Whereupon  the 
said  Cook  discharged  his  musquet  at  the  said  Marshal,  and  stroke  him, 
of  which  stroke  the  day  following  he  died.  The  doubt  was,  whether 
upon  all  this  matter  he  be  guilty  of  murder  or  manslaughter? 

And  it  was  now  argued  by  Rolle,  for  Cook,  that  it  was  not  murder ; 
for  although  a  bailiff  were  slain,  yet  it  was  by  his  own  procurement 
in  doing  an  unlawful  act,  viz.:  in  breaking  the  window  and  door,  and 
attempting  to  enter  and  serve  process,  which  is  not  lawful  for  a  per- 
sonal duty,  unless  in  the  king's  case ;  and  for  that  purpose  he  cited 
5  Co.  91,  b,  92;   Seamain's  Case,  13  Edw.  IV. 

And  after  argument  at  the  bar,  all  the  Justices  seriatim  delivered 
their  opinions,  that  it  was  not  murder,  but  manslaughter  only;  for 
though  he  killed  a  bailiff,  yet  he  killed  him  not  in  duly  executing  pro- 
cess :  for  it  is  not  murder,  unless  there  be  malitia  praecogitata,  or 
malitia  implicita ;  as  to  murder  one  suddenly,  or  in  resistance  of  an  of- 
ficer doing  his  office;  but  that  last  ought  to  be  where  he  is  duly  ex- 
ecuting his  office,  by  serving  the  process  of  law,  wherein  he  is  assisted 
cum  potentate  regis  et  lecns:  but  here  this  bailiff  was  slain  in  doing 
an  unlawful  act,  in  seeking  to  break  open  the  house  to  execute  pro- 
cess for  subject,  which  he  ought  not  to  do  by  the  law ;  and  although 
he  might  have  entered  if  the  door  had  been  opened  and  arrested  the 
party,  and  it  had  been  lawful,  yet  bo  ought  not  to  break  open  the  house, 
for  that  is  not  warranted  by  law  and  especially  lying  there  in  the  night, 
and  in  the  morning  breaking  the  window  and  offering  to  force  the 
which  is  not  sufferable;  for  under  colour  thereof  one  may  enter 
who  hath  not  any  sue])  authority;  and  every  one  is  to  defend  his  own 
Yet  they  .-ill  held,  thai  it  was  manslaughter ;  I'm-  he  mighl 
have  resisted  fiirri  without  killing  him;  and  when  he  saw  him  and  shot 
voluntarily  at  him,  it  was  manslaughter.1 

1  Part  of  tins  case  is  omll  ted. 


Sec.  3)  AUTHORIZED   ACTS.  259 

FORD'S  CASE. 

(King's  Bench,  1627-31.    Kelyng,  51.) 

My  brother  Archer,  upon  discourse,  told  me  he  well  remembered  the 
case  of  Mr.  Ford,  a  Gent.,  in  Gray's  Inn,  who  in  the  time  when  Sir 
Nich.  Hyde  was  Chief  Justice,  was  indicted  of  murder  in  the  King's 
Bench,  and,  upon  the  evidence,  the  case  was  that  Mr.  Ford,  with  other 
company,  was  in  the  Vine  Tavern  in  Holborn,  in  a  room,  and  some 
other  company,  bringing  with  them  some  women  of  ill  fame,  would 
needs  have  the  room  where  Mr.  Ford  was,  and  turn  him  out,  to  which 
Mr.  Ford  answered,  that  if  they  had  civilly  desired  it,  they  might 
have  had  it,  but  he  would  not  be  turned  out  by  force,  and  thereupon^ 
they  drew  their  swords  on  Mr.  Ford  and  his  company,  and  Mr.  Ford 
drew  his  sword,  killed  one  of  them,  and  it  was  adjudged  justifiable.1 


CARROLL  v.  STATE. 

(Supreme  Court  of  Alabama,  1853.    23  Ala.  28,  58  Am.  Dec.  282.) 

Goldthwaite,  J.2  We  will  first  consider  the  questions  presented  by 
the  refusal  of  the  court  to  give  the  charge  requested.     *     *     * 

A  mere  civil  trespass  upon  a  man's  house,  unaccompanied  with  such 
force  as  to  make  it  a  breach  of  the  peace,  would  not  be  a  provocation 
which  would  reduce  the  killing  to  manslaughter,  if  it  was  done  under 
circumstances  from  which  the  law  would  imply  malice,  as  with  a 
deadly  weapon.  For  trespasses  with  force  it  may  be  murder  or  man- 
slaughter, according  to  the  circumstances.  The  owner  may  resist  the 
entry,  but  he  has  no  right  to  kill,  unless  it  be  rendered  necessary  to 
prevent  a  felonious  destruction  of  his  property,  or  to  defend  himself 
against  loss  of  life  or  great  bodily  harm.  If  he  kills  when  there  is  not 
a  reasonable  ground  of  apprehension  of  imminent  danger  to  his  person 
or  property,  it  is  manslaughter,  and  if  done  with  malice,  express  or 
implied,  it  is  then  murder. 

The  rule  as  to  the  extent  of  protection  to  the  dwelling  being  ascer- 
tained, there  is  but  little  difficulty  in  its  application  to  the  facts  as  stat- 
ed upon  the  record.  It  is  conceded  most  fully  that,  if  the  evidence 
shows  an  assault  upon  the  house  or  the  person  under  circumstances 
which  would  create  a  reasonable  apprehension — that  is,  a  just  appre- 
hension in  the  mind  of  a  reasonable  man — of  the  design  to  commit  a 
felony  with  force,  or  to  inflict  a  personal  injury  which  might  result 

i  Seq.  qu.,  Foster,  274. 

Accord:    Defense  of  possession  of  office  building  by  one  joint  tenant  against 
another,  Jones  v.  State,  76  Ala.  8  (18S4). 
Compare  Dakin's  Case,  1  Lewin,  C.  C.  166  (1S28). 
*  Part  of  this  case  is  omitted. 


260  THE    CRIMINAL   ACT.  (Ch.   6 

in  loss  of  life  or  great  bodily  harm,  the  danger  of  the  design  being 
carried  into  execution  being  imminent  and  present,  the  person  in  whose 
mind  such  an  apprehension  is  induced,  and  over  whose  person  or 
property  such  danger  is  impending,  may  lawfully  act  upon  appear- 
ances and  kill  the  assailant.  The  law  in  such  a  case  would  not  require 
that  the  danger  should  be  real,  that  the  peril  should  actually  exist; 
but  it  does  require  that  the  appearances  should  be  such  as  would  ex- 
cite a  reasonable  apprehension  of  such  peril,  and  if  such  appearances 
do  not  exist  the  killing  would  be  either  murder  or  manslaughter. 

Assuming,  therefore,  that  the  deceased  came  to  his  death  by  the 
act  of  the  prisoner,  and  by  the  use  of  a  deadly  weapon,  and  in  the 
aspect  of  the  case  as  presented  by  the  charge  requested,  the  question 
is  simply  whether  the  act  was  done  under  the  necessity,  real  or  appar- 
ent, which  the  law  requires.  If  it  was  not,  it  follows  necessarily  that  the 
prisoner  was  guilty  either  of  murder  or  manslaughter ;  and,  if  there  was 
any  evidence  which  tended  to  show  that  such  necessity  existed,  the 
charge  requested  should  have  been  given.  Without  referring  to  the 
evidence  in  detail,  it  is  sufficient  to  observe  that  the  bill  of  exceptions 
shows  that  none  was  offered  of  any  act  of  violence  on  the  part  of  the 
deceased,  either  in  making  the  entry  into  the  house,  or  after  it  had  been 
made,  unless  the  entry  itself,  after  he  had  been  warned  not  to  enter, 
might  be  regarded  as  an  act  of  violence.  When  the  law  speaks  of  a 
forcible  trespass,  it  means  such  a  trespass  as  would  amount  to  a  breach 
of  the  peace.  Entering  the  house  after  a  warning  had  been  given 
would  have  aggravated  the  trespass;  but,  if  done  without  force,  it 
would  not  have  been  a  breach  of  the  peace.  The  whole  evidence, 
therefore,  consisted  of  the  previous  threats  made  by  the  deceased  and 
the  trespass  committed  by  him.  The  threats,  however,  did  not  change 
the  character  of  the  trespass  and  convert  it  into  a  trespass  with  force. 
We  have  seen  that,  although  a  forcible  trespass  upon  the  dwelling- 
may  in  some  cases  authorize  the  killing  of  the  assailant,  yet  it  is 
not  every  invasion  even  of  this  character  upon  a  man's  dwelling  which 
will  reduce  the  killing  to  manslaughter.  The  charge  requested  refer- 
olely  to  the  right  of  the  prisoner  to  protect  the  possession  of  his 
,  and  the  circumstances,  therefore,  must  tend  to  prove  a  reason- 
able apprehension  on  his  part  of  the  existence  of  such  a  state  of  facts 
as  would  relieve  him  from  the  crime  of  murder.  Taken  in  connection 
with  the  evidence,  then,  the  charge  asserted  the  proposition  that,  where 
the  evidence  established  only  a  trespass  without  force,  it  tended  to  cre- 
ate a  reasonable  apprehension,  not  only  that  it  was  committed  with 
.  but  under  such  circumstances  as  would  be  sufficient  to  reduce 
the  killing  to  manslaughter.  We  think  there  was  no  error  in  the  re- 
.'  of  this  chai 

There  is  no  error  in  the  record,  and  the  judgment  is  affirmed. 


Sec.  3)  AUTHORIZED    ACTS.  2G1 

STATE  v.  TAYLOR. 

(Supreme  Court  of  North  Caroliua,  1880.    82  N.  C.  554.) 

Indictment  for  an  affray,  tried  at  fall  term,  1879,  of  Wake  superior 
court,  before  Avery,  J.1 

Ashe,  J.  One  witness,  Bryan  Smith,  testified  that  the  first  he  saw 
was  Williams  at  the  door  of  Taylor's  house  "cutting  or  reaching  into 
the  door,  and  Taylor  came  out  striking  at  Williams  with  a  whip- 
staff,  while  Williams  was  cutting  at  Taylor  with  a  razor;  that  Wil- 
liams walked  backwards,  cutting  with  his  razor,  some  10  or  15  feet 
from  Taylor's  door,  and  Taylor  continued  to  advance  upon  him  with 
his  whip-staff."  When  a  trespasser  or  unwelcomed  visitor  invades 
the  premises  of  another,  the  latter  has  the  right  to  remove  him,  and 
the  law  requires  that  he  should  first  request  him  to  leave,  and,  if  he 
■does  not  do  so,  that  he  should  lay  his  hands  gently  upon  him;  and, 
if  he  resists,  he  may  use  sufficient  force  to  remove  him,  taking  care, 
however,  to  use  no  more  force  than  is  necessary  to  accomplish  that 
object.  But  if  the  intruder  defiantly  stands  his  ground,  armed  with 
a  deadly  weapon,  the  doctrine  of  "molliter  manus"  does  not  apply, 
and  the  owner  may  at  once  resort  to  physical  force ;  and  it  is  a  ques- 
tion for  the  jury  to  decide  whether  he  used  more  force  than  was  ne- 
cessary.   State  v.  Davis,  80  N.  C.  351,  30  Am.  Rep.  86. 

As  Williams  was  at  the  door  of  the  defendant's  house,  reaching  in 
the  door  and  cutting  with  a  razor,  and  the  defendant  was  striking  at 
him  with  a  staff,  we  think  the  jury  might  have  been  warranted  in 
coming  to  the  conclusion  that  it  was  the  purpose  of  the  defendant  to 
expel  him  from  his  house,  as  he  had  the  right  to  do ;  and  then  it  would 
have  been  a  material  inquiry  for  the  jury  whether  the  defendant  had 
used  more  force  than  was  necessary.  Injthis  view  of  the  case,  it  was 
proper  for  the  jury  to  ask  the  court  for  instructions  as  to  the  amount 
of  force  that  might  lawfully  be  used  by  the  defendant,  Taylor,  in  order 
to  expel  Williams  from  his  house;  and  we  are  of  the  opinion  it  was 
the  duty  of  the  court  to  give  the  instructions,  and  in  its  failure  to  do 
so  there  was  error. 

Let  this  be  certified  to  the  superior  court  of  Wake  county,  that  a 
venire  de  novo  may  be  awarded  to  the  defendant. 

Error.    Venire  de  novo.2 

i  Part  of  the  opinion  is  omittod. 

2  "There  was,  however,  asked  for  accused  an  Instruction  to  the  effect  'that 
defendant  was  not  required  to  escape  or  retreat,  but  had  a  right  to  stand  his 
ground  and  use  such  force  as  was  necessary  to  eject  the  deceased  from  his 
premises,  even  to  taking  his  life.'  That  instruction  should  not  have  been 
given,  because  it  implied  the  right  of  accused  to  use  necessary  force,  even  to 
taking  life,  in  order  to  eject  deceased  from  his  premises,  who  had  been  invited 
there,  and  was  then  his  guest."  Lewis,  J.,  in  Eversole  v.  Commonwealth.  17 
Kv.  Law  Rep.  12.r>9,  34  S.  W.  231  (1896).  Axrcord:  State  v.  Mcintosh,  40  S.  C. 
349,  18  S.  E.   1033  (1893). 


262  COMBINATIONS  OF   PERSONS   IN   CRIME.  (Cll. 


CHAPTER  VII. 
COMBINATIONS  OF  PERSONS  IN  CRIME. 


SECTION  1.— PRINCIPAL  IN  THE  FIRST  DEGREE. 


By  what  hath  been  formerly  delivered,  principals  are  in  two  kinds, 
principals  in  the  first  degree,  which  actually  commit  the  offense;  prin- 
cipals in  the  second  degree,  which  are  present,  aiding,  and  abetting 
of  the  fact  to  be  done. 

So  that  regularly,  no  man  can  be  a  principal  in  felony,  unless  he 
be  present,  unless  it  can  be  in  case  of  wilful  poisoning,  wherein  he  that 
layeth  or  infuseth  poison  with  the  intent  to  poison  any  person,  and 
the  person  intended,  or  any  other,  take  it  in  the  absence  of  him  that 
layeth  it,  yet  he  is  a  principal.       *     *     * 

A  lets  out  a  wild  beast,  or  employs  a  madman  to  kill  others,  whereby 
any  is  killed,  A  is  principal  in  this  case,  tho'  absent,  because  the  in- 
strument cannot  be  a  principal.    Dalt.  Cap.  108. 

Hale,  P.  C.  c.  55. 


REGINA  v.  MANLEY. 

(Somerset  Assizes,  1844.    1  Cox,  C.  C.  104.) 

Indictment  for  larceny. 

The  facts,  as  proved  by  the  prosecution,  were  that  the  prisoner  was 
an  apprentice  of  the  prosecutor ;  that  he  had  induced  the  son  of  the 
prosecutor,  a  child  of  the  age  of  nine  years,  to  take  money  from  his 
father's  till,  and  give  to  him.  On  cross-examination,  it  further  appear- 
ed that  the  child  had  done  the  like  for  other  boys. 

Cox,  for  the  prisoner,  submitted  that  the  evidence  did  not  sustain 
the  indictment.  The  prisoner  was  charged  with  stealing  money  as 
principal.  The  evidence  showed  him  to  be  either  an  accessory  or  a 
receiver.  If  an  offense  be  committed  through  the  medium  of  an  in- 
nocent agent,  the  employer,  though  absent  when  the  act  was  done,  is 
answerable  as  a  principal.  R.  v.  Giles,  1  Moody,  C,  C.  lf>G;  Reg.  v. 
Michael,  2  Moody,  C.  C.  120,  9  Car.  &  P.  356.  Bui  if  the  instrument 
be  aware  of  the  consequences  of  his  act,  he  is  the  principal  in  the  first 
degree;  and  the  employer,  if  he  be  absent  when  the  fact  is  committed, 
is  .in  accessory  before  the  fact.  R.  v.  Stewart,  1\.  &  R.  363.  In  this 
the  evidence  had  shown  beyond  doubl  that  the  child  was  of  the 
i  discretion  and  fully  aware  of  the  consequences  of  his  act. 


Td  {  L**i+A  t   I 


-Or^^<w»i  K»t*W^  p^^y  ^r^^ 


Sec.  1)  PRINCIPAL   IN    THE    FIRST    DEGREE.  203 

Wigiitman,  J.  What  do  you  mean  by  an  innocent  agent,  if  this 
child  be  not  one? 

Cox:  An  agent  who,  from  age,  defect  of  understanding,  ignorance 
of  the  fact,  or  other  cause,  cannot  be  particeps  criminis. 

Wigiitman,  J.  But  though  an  act  done  through  the  medium  of 
an  innocent  agent  makes  the  prisoner  a  principal,  how  do  you  show 
that  he  is  not  a  principal,  where  the  act  is  done  through  the  medium 
of  a  responsible  agent? 

Cox:  Because^  if  the  agent  be  responsible,  he  becomes,. principal ; 
and  to  constitute  a  principal  he  must  be  the  actor  or  actual  perpetrator 
of  the  fact,  or  cognizant  of  the  crime,  and  near  enough  to  render  as- 
sistance. Though  there  be  a  previous  concerted  plan,  those  not  pres- 
ent or  near  enough  to  aid  at  the  time  when  the  offense  is  committed 
are  not  principals,  but  accessories  before  the  act.  See  cases  cited  Arch. 
(9th  Ed.)  p.  4. 

Wightman,  J.  It  is  a  question  for  the  jury,  if  the  child  was  an 
innocent  agent. 

Wightman,  J.    (to  the  jury).     Apart  from  the  consideration  of 
the  guilt  or  innocence  of  the  prisoner  generally,  if  you  believe  the 
story  told  by  the  child,  you  will  have  to  determine  whether  the  child-) 
was  an  innocent  agent  in  this  transaction — that  is,  whether  he  knew  \J 
that  he  was  doing  wrong,  or  was  acting  altogether  unconsciously  of  \ 
guilt,  and  entirely  at  the  dictation  of  the  prisoner;    for,  if  you  should 
be  of  opinion  that  he  was  not  an  innocent  agent,  you  cannot  find  the 
prisoner  guilty  as  a  principal  under  this  indictment. 

Verdict  — Not  guilty.1 


REX  v.  DADE. 
(Court  for  Crown  Cases  Reserved,  1831.     1  Mood.  307.) 

The  prisoners,  except  Dade,  who  had  made  his  escape,  were  tried 
before  Mr.  Justice  Littledale,  at  the  last  Spring  Assizes  for  the  county 
palatine  of  Lancaster  in  the  year  1831. 

First  count  was  against  Jonathan  Dade  (otherwise  Day),  Kirk- 
wood,  and  Stansfield  for  forging  a  promissory  note  whose  tenor  fol- 
lows : 

"No.  3,534.  Wirksworth  and  Ashburn,  £5. 

"I  promise  to  pay  the  bearer  on  demand  five  pounds,  here  or  al 
Messrs.  Smith,  Payne  &  Smith,  bankers,  London,  value  received. 

"Worksworth,  12th  December,  1829. 

"No.  3,534. 
"For  Richard  Arkwright  &  Co. 

"Charles  Arkwright. 
"Entered,  William  Peat,  £5." 

i  Accord:  Rex  v.  Giles,  1  Moody,  Cr.  Cas.  166  (1827) ;  Berry  v.  State,  10  Ga, 
511  (1851). 

Urkw«  Ifcj  K^Jl^  «a  Owrf^W^  tvj  tiff    ^x-Lt^*-'^  >Y  i^ff^T'  r~fr%\^- 


— V* 


264  COMBINATIONS  OF   PERSONS  IN  CRIME.  (Ch.    7 

—with  intent  to  defraud  Richard  Arkwright  and  others,  and  against 
Collins,  Campbell,  and  Liddy  for  aiding,  abetting,  counseling  and  pro- 
curing the  said  Dade,  Kirkwood,  and  Stansfield  to  commit  said  felony 
and  forgery.  Second.  Same  as  first,  with  intent  to  defraud  Samuel 
Smith  and  others.  Third.  Same  against  Dade  only  for  offering,  utter- 
ing, disposing  of,  and  putting  off  said  forged  note,  with  intent  to  de- 
fraud said  Richard  Arkwright  and  others.  Fourth.  The  like,  with  in- 
tent to  defraud  said  Samuel  Smith  and  others.  Fifth.  The  like,  with  in- 
tent to  defraud  George  Sykes. 

In  the  month  of  August  last  Collins  and  Campbell  were  desirous 
that  forged  notes  of  the  Wirksworth  bank  should  be  prepared,  and  it 
was  agreed  by  them  that  a  person  of  the  name  of  Wilson,  who  was 
examined  as  a  witness  for  the  crown,  should  find  the  "bottoms,"  which 
is  a  slang  term  used  by  persons  who  deal  in  forged  notes  to  denote 
paper  for  making  the  notes.  In  the  course  of  that  month  Wilson  told 
Stansfield  there  were  some  people  wanting  bottoms  for  making  Ark- 
w right's  notes. 

Stansfield  agreed  to  make  the  bottoms ;  200  were  mentioned  as  be- 
ing the  number  wanted. 

Bottoms  were  afterward  delivered  by  Stansfield  to  Wilson,  and  Wil- 
son gave  him  credit  for  350,  at  4s.  apiece,  which  came  to  £70;  but 
Stansfield  in  fact  delivered  358  to  Wilson.  A  discussion  then  took 
place  about  the  paper  being  such  as  was  wanted,  and  Stansfield  said 
he  thought  they  would  do  when  they  were  completed;  that  350 
would  go. 

Stansfield  after  this  had  interviews  with  Dade  and  Campbell,  and 
they  each,  at  different  times,  complained  of  the  paper.  Campbell  got 
a  genuine  Wirksworth  note,  and  WTilson  sent  it  to  Liddy.  After  this 
Wilson  gave  the  bottoms  to  Campbell  to  take  to  Liverpool. 

About  a  week  after,  Wilson  sent  the  pattern  note  to  Liddy.  He 
(Wilson)  saw  Kirkwood,  and  inquired  if  he  was  the  engraver  from 
Liverpool.  Kirkwood  asked  about  Liddy  and  Campbell,  and  at  last 
acknowledged  that  he  was  the  engraver,  and  what  his  errand  was 
with  Wilson ;  that  it  was  the  Wirksworth  notes.  He  said  he  had  re- 
ceived the  £5  note  and  the  bottoms  from  Liddy;  and  he  said,  if  Wil- 
son had  a  mind,  he  should  have  the  plates,  as  he  was  dissatisfied  with 
Liddy  and  another  person  whom  he  mentioned.  Some  difference  oc- 
curred between  them,  Kirkwood  and  Campbell,  and  Kirkwood  told 
Wilson  he  would  only  deal  with  him,  Wilson. 

Wilson  had  told  Dade  that  there  would  be  such  notes,  and  he  would 
have  to  fill  them  up;  and  Dade  said  he  would  do  so.  After  this  Wil- 
son went  to  Liverpool,  and  saw  Kirkwood,  who  showed  him  the  plate, 
and  said  that  was  the  thing  that  the  job  was  to  be  done  with. 

The  next  day  Wilson,  Kirkw 1,  and  Campbell  were  together,  and 

agreed  aboul  the  price  of  the  notes;   that  Kirkwood  should  have  £40 
for  i"f>  notes.    Wilson  took  150,  and  paid  Kirkwood  £60  for  them. 
The   following  day  Kirkwood  brought  350,  and  delivered  them  to 


See.  1)  PRINCIPAL   IN   THE    FIRST   DEGREE.  2Gu 

Wilson,  in  the  neighborhood  of  Liverpool,  and  Wilson  delivered  them 
to  Campbell. 

Wilson  and  Campbell  then  went  to  Selford,  to  Dade's  house,  and 
delivered  the  notes  to  Mrs.  Dade. 

The  next  day  Dade  saw  the  notes  and  approved  of  them;  and  he 
was  to  fill  them  up  by  a  pattern  which  Wilson  had  got  from  Collins, 
to  let  Dade  have ;  and  Dade  finished  the  notes  off.  Dade  promised  not 
to  deliver  any  of  them  till  he  saw  Wilson  again.  Collins  and  Camp- 
bell were  desirous  to  have  some  of  them  when  they  were  ready.  This 
was  on  the  4th  of  September.  The  note  in  question  was  proved  to  be 
a  forgery.  .  It  was  proved  to  be  one  of  Stansfield's  make.  :  The  en- 
graving__was  proved  to  be  an  impression  from  th*  pl^  whlrhlZTTyT 
wood  sho~wed,  to  Wilson,. 

The  filling  up  of  the  note  was  proved  to  be  in  Dade's  writing.  It 
did  not  appear  that  Stansfield,  either  before  or  at  the  time  he  delivered 
the  bottom  to  Wilson,  knew  that  either  Dade  or  Kirkwood  had  or  were 
to  have  anything  to  do  with  the  transaction;  neither  did  it  appear, 
that  Kirkwood,  when  he  delivered  the  impression  of  the  plate  to  Wil- 
son, knew  that  either  Dade  or  Stansfield  had  or  were  to  have  any-' 
thing  to  do  with  the  transaction. 

The  counsel  for  the  crown  referred  to  the  case  of  Rex  v.  Bingley 
and  Others,  Russell  and  Ryan,  446. 

The  jury  found  Kirkwood,  Stansfield,  Collins,  and  Campbell  guilty; 
Liddy  not  guilty. 

But  the  learned  judge  doubted  whether  the  present  case  went 
the  length  of  that,  and  whether  the  conviction,  as  far  as  related  to 
Kirkwood  and  Stansfield,  was  proper;  and  then,  if  it  was  wrong  as 
to  them,  the  conviction  of  Collins  and  Campbell,  who  were  charged 
as  accessories  before  the  fact,  would  fall  to  the  ground  also,  inas- 
much as  Dade  was  not  upon  his  trial. 

The  learned  judge  respited  the  judgment  till  the  next  assizes, 
that  the  opinion  of  the  judges  might  be  taken. 

This  case  was  considered  at  a  meeting  of  all  the  judges,  except 
Garrow,  B.,  and  Patteson,  J.,  in  Trinity  term,  1831;  and 
they  were  unanimously  of  opinion  that  Kirkwood  was  a  principal, 
and  that  the  conviction  was  right.1 


REGINA  v.  JEFFRIES. 

(Central  Criminal  Court,  1848.    3  Cox,  C.  C.  85.) 

The  prisoners  were  indicted  for  larceny  in  a  dwelling  house.  It 
appeared  that  Jeffries  was  clerk  to  one  Whittock.  the  prosecutor, 
who  was  a  coal  dealer.     The  prosecutor's  money  chest  was  kept  in 

i  Compare  Rex  v.  Manners,  7  Car.  &  P.  801  (1837);  Reg.  v.  Charles,  17  Cox. 
C.  C.  499  (1892). 


266  COMBINATIONS   OF   PERSONS   IN   CRIME.  (Cll.    7 

a  room  adjoining  the  office,  and  of  the  door  of  this  room  the  prisoner 
Jeffries  had  a  key.  On  the  night  of  the  larceny  he  was  proved  to 
have  unlocked  the  door  and  then  gone  away.  About  20  minutes 
afterwards  the  prisoner  Bryant  came  to  the  room  and  removed  the 
money  chest.  It  was  attempted  to  be  shown,  on  the  part  of  the  prisoner 
Jeffries,  that  he  was  three-quarters  of  a  mile  from  the  prosecutor's 
premises  at  the  time  Bryant  was  there. 

Cresswell,  J.,  told  the  jury  that  where  one  person  opens  the  door 
of  a  house  which  contains  the  articles  stolen,  and  then  goes  away, 
and  another  in  his  absence,  but  acting  in  concert  with  him,  enters 
the  house  and  commits  the  larceny,  the  one  who  opens  the  door  is 
not  guilty  as  a  principal  in  the  act. 

Greaves,  for  the  prosecution,  submitted  that  Jeffries  was  guilty 
of  a  joint  larceny,  although  he  was  not  actually  present  at  the  time 
of  the  removal  by  Bryant.  In  the  case  of  burglary,  where  the  break- 
ing is  in  one  night  and  the  entry  the  next  night,  a  person  present  at 
the  breaking,  though  not  present  at  the  entering,  is  in  law  guilty 
of  the  whole  offense.    Rex  v.  Jordan,  7  C.  &  P.  432. 

Cresswell,  J.,  said  he  would  consult  Mr.  Justice  Patteson, 
sitting  in  the  Nisi  Prius  Court.  On  his  return,  he  said  Mr.  Justice 
Patteson  agreed  with  him,  and  entertained  no  doubt  on  the  point ; 
and  accordingly 

Cresswell,  J.,  directed  the  jury,  if  they  believed  that  Jeffries 
was  not  present  assisting  Bryant  at  the  time  of  the  removal  of  the 
chest,  to  acquit  him. 


SECTION  2.— PRINCIPAL  IN  THE  SECOND  DEGREE. 


GRIFFITH'S  CASE. 

(Reporter's  Note,   1553.     1  Plow.    97.) 

Note  (Reader)  that  the  said  case  in  40  Ass.  pi.  25,  proves  that 
the  law  anciently  was,  that  those  who  were  present  and  abetting 
were  not  Principals,  but  Accessories,  as  the  Lord  Bromley  said  before, 
for  the  book  is,  that  four  were  appealed  as  Principals,  and  the  others 
of  Presence,  Force,  and  Aid.  And  also  in  Mich.  40  Edw.  Ill,  42, 
it  appears  that  one  William  de  C.  was  appealed  for  that  he  was  aiding, 
present,  and  commanding  one  T.,  who  on  a  certain  Day  killed  W. 
dc  R.,  Husband  of  the  Wife;  and  because  the  Principal  was  not  at- 
tainted b  tit,  nor  in  other  manner,  the  defendant  was  let  to 
Mainprize,  and  afterward  the  Principal  was  attainted  by  Exigent, 
and  then  W.  was  put  to  answer.  *  *  *  I'm  of  late  time  the  Law 
lias  been  held  contrary  in  this  point,  for  now  they  are  taken  to  be 
Principals  by  all  the  of  the  law     *     *     *     and  in  the  Years 


Sec.  2)  PRINCIPAL   IN    THE    SECOND    DEGREE.  207 

of  Henry  IV,  the  Reader  may  see  the  law  often  adjudged  accordingly, 
viz.,  that  those  who  are  present  and  abetting  to  do  the  Act  are 
Principals,  as  well  as  he  that  does  it.  And  it  seems  the  Law  was 
so  changed  in  the  Time  of  the  said  King  Henry  IV,  when  the  former 
course  was  reproved  and  corrected  in  this  point. 


BANSON  v.  OSSLEY. 

(King's  Bench,  1686-87.    3  Mod.    121.) 

An  appeal  of  murder  was  tried  in  Cambridgeshire  against  three 
persons,  and  the  count  was,  that  Ossley  assaulted  the  husband  of 
the  appellant  and  wounded  him,  in  Huntingdonshire,  of  which  wound 
he  languished  and  died  in  Cambridgeshire,  and  that  L,ippon  and  Mar- 
tin were  assisting. 

The  jury  found  a  special  verdict,  in  which  the  fact  appeared  to 
be,  that  Lippon  gave  the  wound,  and  that  Martin  and  Ossley  were 
assisting. 

The  first  exception  to  this  verdict  was,  That  the  count  and  the 
matter  therein  alleged  must  be  certain,  and  so  likewise  must  the 
verdict,  otherwise  no  judgment  can  be  given;  but  here  the  verdict 
finding  that  another  person  gave  the  stroke,  and  not  that  person 
against  whom  the  appellant  had  declared,  it  is  directly  against  her 
own  showing.1 

The  Court  answered  to  the  first  exception,  that  it  was  of  no 
force,  and  that  the  same  objection  may  be  made  to  an  indictment, 
where  in  an  indictment  if  one  gives  the  stroke  and  another  is  abet- 
ting, they  are  both  principally  and  equally  guilty;  and  an  indictment 
ought  to  be  as  certain  as  a  count  in  an  appeal.3 


THORNTON  v.  STATE. 

(Supreme  Court  of  Georgia,  1903.    19  Ga.  437,  46  S.  E.  640.) 

Fish,  P.  J.8  If  Thornton  had  given  his  pistol  to  Amos,  with  in- 
structions or  advice  to  kill  Sam  Gordon  with  it,  and  Amos  had  done 
so  when  Thornton  was  present,  and  nothing  more  had  appeared,  then 
Thornton  would  have  been  guilty  as  principal  in  the  second  degree. 
The  evidence  for  the  state  shows,  however,  that  when  Thornton  loaned 
his  pistol  to  Amos  he  told,  or  advised,  him  to  kill  Gordon  with  it,  if 
he  should  again  rob  Amos  at  cards.     His  advice  or  instruction  to 

i  The  second  exception  Is  omitted. 

2 Accord:     Doan  v.   State,  26  Ind.  495  (1SG6) ;    Commonwealth  v.  Kern.  1 
Brewst.  (Pa.)  350  (1867) ;    State  v.  Hess,  65  N.  J.  Law,  544,  47  Atl.  806  (1900). 
»  Part  of  the  opinion  is  omitted. 


f  in  r>  i 


268 


COMBINATIONS   OF   PERSONS   IN   CRIME. 


(Ch.  7 


kill  Gordon  was,  therefore,  conditional,  or  dependent  upon  the  event 
that  Gordon  should  again  rob  Amos  at  cards.  Even  granting  that 
there  was  enough  in  the  evidence  to  authorize  the  jury  to  infer  that 
Amos  and  Gordon  had,  subsequently  to  the  loan  of  the  pistol,  engaged 
in  playing  cards,  we  think  there  is  nothing  in  the  evidence  from  which 
the  jury  could  fairly  infer  that  Gordon  had  robbed  Amos  in  such  a 
game,  or  that  the  killing  was  in  consequence  of  such  robbery.  Of 
course,  we  do  not  use  the  words  "robbed"  and  "robbery"  here  in 
their  limited  legal  sense,  but  as  including  cheating  in  a  game  of  cards 
played  for  money.  The  evidence  shows  that  Amos  stated  to  Gordon 
that  he  owed  him  a  dime.  This  Gordon  denied,  but  paid  it,  saying  at 
the  time  that  he  would  make  some  of  them  shoot  him ;  whereupon 
Amos  immediately  shot  and  killed  him.  From  these  facts  we  do  not 
think  it  can  be  successfully  contended  that  the  evidence  shows  that, 
at  the  time  of  the  homicide,  there  was  in  the  mind  of  Thornton  the 
same  criminal  intent  and  felonious  design  that  was  in  the  mind  of 
Amos.  The  common  intent  and  purpose  in  the  minds  of  both,  at  the 
time  that  Thornton  furnished  Amos  with  the  pistol,  was  that  Amos 
should  kill  Gordon  if  the  latter  should  again  rob  him  at  cards. 
There  is  nothing  in  the  evidence  to  show,  or  to  authorize  the  jury  in 
finding,  that  Thornton  ever  had  any  other  criminal  intent.  If  Amos, 
after  procuring  the  pistol  from  Thornton,  had  casually  met  Gordon 
and  immediately  shot  him,  without  any  provocation  whatever,  cer- 
tainly Thornton  would  not  have  been  guilty  of  murder  as  a  principal 
in  the  second  degree,  although  he  had  been  present  on  the  occasion 
of  the  homicide,  if  he  did  nothing  then  to  aid  or  abet  the  commission 
of  the  crime.2  It  follows  from  what  we  have  said  that  the  court  should 
have  granted  a  new  trial,  upon  the  ground  that  there  was  no  evidence 
to  support  the  verdict. 

Judgment  reversed.  All  the  Justices  concur,  except  Simmons, 
C.  J.,  absent. 

2 Arronl:  Connanghty  v.  State,  1  Wis.  159,  GO  Am.  Dec.  370  (1853);  Teople 
v.  Ah  Ping,  27  Cal.  489  (1865);  Plummer  v.  Commonwealth,  l  Bush  (Ky.)  70 
(1866);  Hem  v.  State,  33  Ind.  418  (1870):  State  v.  Cox,  <;.">  Mo.  29  (1877); 
Coney,  8  Q.  B.  Div.  534  (1882);  While  v.  People,  139  111.  143,  28  N. 
B.  1083,  32  Am.  St.  Rep.  19G  (1891) ;  State  v.  Wolf,  112  Iowa,  458,  84  N.  W.  530 
(II |. 

Compare  McCarty  v.  State,  26  Miss.  299  (1853);  Leslie  v.  State,  42  Tex. 
Cr.  I\  65,  ."7  S.  W.  659  (1!"H».  In  Ramon  v.  State  (Tex.  Cr.  App.)  08  S.  W. 
087  (1902),  it  was  hold  that  the  fact  that  defendant,  knowing  that  O.  was 
aboul  to  km  deceased,  hold  the  son  of  the  deceased  from  going  t<>  ins  father's 
assistance!  would  not  make  defendant  a  principal  in  the  second  degree  1<> 
the  homicide. 

"The  words  'or  approving  of  have  no  place  in  legal  phraseology  to  explain 
tin-  meaning  of  the  words  to  'aid'  ami  'abet.1  The  fact  itself  is  Incapable  of 
proof.  Mental  operations,  not  accompanied  with  any  action  or  language,  are 
heyond  the  reach  of  testimony."    Napton,  J.,  In  State  v.  Cox,  05  Mo.  29  (1877). 


Sec.  2)  PRINCIPAL   IN    THE    SECOND    DEGREE.  2G9 

i 

STATE  v.  POYNIER. 
(Supreme  Court  of  Louisiana,  1884.    3G  La.  Ann.  572.) 

Manning,  J.  Poynier,  with  four  others,  was  prosecuted  for  larceny 
of  32  bales  of  cotton,  the  property  of  the  Texas  &  Pacific  Railway,  and, 
upon  conviction,  was  sentenced  to  four  years'  imprisonment  at  hard 
labor.    He  alone  is  before  us  on  this  appeal. 

By  request  of  the  prisoner's  counsel,  the  judge  charged  that  "per- 
sons not  sufficiently  near  to  give  assistance  are  not  principals.  That 
they  were  sufficiently  near  must  be  proven  by  the  state  beyond  a  rea- 
sonable doubt.  If  a  man  be  at  such  distance  from  the  place  where  the 
offense  was  committed  that  he  could  not  assist  in  it  if  required,  he 
cannot  be  deemed  a  principal."  And  then  immediately  added :  "Where 
a  person  keeps  away  from  the  place  where  the  crime  is  committed  for 
the  purpose  of  facilitating  the  commission  of  the  offense,  even  if  he/ 
be  not  sufficiently  near  to  give  assistance  if  required,  he  is  to  be  con- 
sidered as  constructively  present." 

_This_a.ddejidum  of  the  judge  was  excepted  to  by  the  prisoner,  and 
.presents  the  question  for  our  review.  In  his  reasons  for  the  charge, 
inserted  in  the  bill  of  exceptions,  the  judge  says :  "The  accused  was 
a  foreman  of  the  Texas  &  Pacific  Railway  at  their  freight  depot  in 
this  city.  I  charged  the  jury  that  if  the  evidence  established  a  com- 
bination on  the  part  of  the  accused  and  others  to  steal  the  32  bales 
of  cotton,  and  that  Poynier,  with  the  view  of  assisting  the  actual  per- 
petrators of  the  larceny,  kept  out  of  the  way,  he  was  guilty  as  prin- 
cipal." 

The  counsel  for  the  prosecution  lays  stress  on  the  circumstance 
that  this  last  enunciation  was  not  excepted  to.  How  could  it  be?  It 
was  not  a  charge  to  the  jury,  but  an  amplification  of  the  charge  pre- 
viously given,  and  not  appearing  until  the  bill  was  ready  to  be  signed, 
and  appearing  only  in  it.  The  jury  never  heard  or  read  it.  The  charge 
to  them  is  the  matter  for  our  consideration. 

The  distinction  between  principals  and  accessories  before  the  fact  / 
is  in  most  cases  a  distinction  without  a  difference,  and  often  requires 
nice  and  subtle  verbal  refinements  to  express  it.  In  some  of  our 
states  it  has  been  abolished  by  statute;  in  others,  judicial  decisions 
have  attenuated  it  until  it  is  perceptible  only  by  a  close  mental  effort. 
The  fact  is,  it  is  not  a  creature  of  statutory  law,  but  wholly  of  judi- 
cial construction,  the  origin  of  which  is  so  vague  and  indeterminatf 
that  the  text-writers  have  not  found  out  where  to  place  it.  It  is  sup- 
posed to  have  originated  at  a  time  when  criminal  lawyers  puzzled 
their  wits  and  taxed  their  ingenuity  to  invent  metaphysical  shades 
of  distinction,  such,  for  instance,  as  that  between  principals  and  ac- 
cessories at  the  fact,  which  once  existed,  but  is  now  exploded.  The 
distinction  between  principals  and  accessories  before  the  fact  is  fast 
following  its  kindred  technical  refinement. 


270  COMBINATIONS   OF   PERSONS   IN   CRIME.  (Ch.    J 

The  general  rule  of  law  is  that  what  one  does  through  another's 
agency  is  to  be  regarded  as  done  by  himself.  In  the  punishment, 
neither  the  common  nor  statutory  law  makes  any  distinction  between 
a  principal  and  an  accessory  before  the  fact,  nor  is  there  any  differ- 
ence in  the  structure  of  the  indictment.  In  morals  there  are  often- 
times circumstances  wherein  we  attach  greater  blame  to  the  accessor)' 
than  to  his  principal,  as  where  a  husband  commands  his  wife  to.  do 
for  his  benefit  a  criminal  act  which  she  would  not  do  without  his  com- 
mand.   1  Bishop,  Crim.  Law,  §  673. 

A  man  whose  sole  will  procures  the  commission  of  a  criminal  act 
is  principal,  without  regard  to  the  physical  agencies  he  employs,  and 
whether  he  is  present  or  absent  when  the  act  is  done.  Where  there 
is  a  principal — and  there  can  be  no  crime  without  one — no  other  per- 
son will  be  considered  a  principal  with  him,  unless  in  a  position  to 
render  personal  assistance  of  some  kind.  The  test  to  determine 
whether  he  is  principal  rather  than  accessory  is  whether  he  is  so 
situated  as  to  make  his  personal  help  available — not  actual  physical 
help  necessarily,  but  help  of  any  kind;  not  help  rendered  in  or  by 
actual  presence,  but  constructive  presence  as  well.  Id.  §  653.  Thus, 
if  he  watched  near  or  at  a  distance  to  prevent  his  companions  being 
surprised,  or  stationed  himself  to  give  the  alarm  to  favor  their  es- 
cape, or  was  in  such  situation  as  to  come  to  their  assistance,  so  that 
the  knowledge  of  his  watching  or  position  or  situation  inspired  or 
was  calculated  to  inspire  his  companions  with  additional  confidence, 
and  enable  them  quicker  or  safer  or  more  effectually  to  commit  their 
crime,  then  he  is  a  principal.     1  Whart.  Am.  Cr.  Law,  §  116. 

One  need  not  be  either  an  eyewitness  of  the  criminal  act  or  within 
hearing  of  it,  to  make  him  a  principal.  If  he  had  knowledge  of  it. 
and  watches  so  as  to  assist  in  any  manner,  it  is  enough.  Doan  v. 
State,  26  Ind.  495.  Or  if  he  do  any  act  in  execution  of  the  common 
design,  or  to  aid  those  who  are  immediately  engaged  to  escape.  W'ix- 
son  v.  People,  5  Parker,  Cr.  R.  (N.  Y.)  119.  Each  person  consenting 
to  the  commission  of  an  offense,  and  doing  any  one  act  which  is  an  in- 
gredient in  the  crime,  or  immediately  connected  with  or  leading 
to  its  commission,  is  a  principal.  U.  S.  v.  Wilson,  Baldw.  78,  102; 
U.  S.  v.  Libby,  1  Woodb.  &  M.   221. 

Therefore,  if  a  person,  with  knowledge  that  the  commission  of  the 
crime  has  been  determined  on,  gets  away  and  keeps  away  from  the 
for  the  purpose  of  facilitating  the  commission  of  it,  he  is  a  prin- 
cipal, although  he  is  not  present  or  near  enough  to  give  assistance 
physically  and  manually  to  his  companions.  And  this  is  but  a  para- 
phrase of  the  judge's  charge.    Reg.  v.  Flatman,   12  L.  Crown  Cas.  Re- 

It    was    for    the   jury   to   find   the   fact   whether   the   defendant   had 

ed  a  combination  to  steal  the  cotton,  and  whether  lie  had  kept 

out  of  the  way  to  assist  his  confederates.     They  found  the   Fact,  and 


Sec.  2)  PRINCIPAL   IN    THE    SECOND    DEGREE.  271 

applied  the  law  as  the  judge  gave  it  to  them,  and  a  conviction  thus 
had  is  legal. 

There  is  a  bill  to  the  admission  of  Poynier's  confession  which  is 
without  merit.  The  confession  was  voluntary,  and  therefore  admis- 
sible.    State  v.  Alphonse,  34  La.  Ann.  9. 

The  third  bill  is  to  a  question  of  the  state's  attorney  in  cross-ex- 
amination. The  defendant  asked  a  witness :  "Are  you  the  person  who 
is  charged  with  having  knowingly  received  the  stolen  cotton  spoken 
of  in  this  case?"  And  again:  "Did  you  buy  32  bales  of  cotton,  or  any 
cotton,  from  the  accused,  Poynier?"  Upon  cross-examination  he  was 
asked:  "How  do  you  account  for  the  tags  which  had  been  attached 
to  the  cotton  which  was  found  in  your  pickery?"  The  objection  was 
that  the  cross-examination  must  be  confined  to  the  facts  and  circum- 
stances which  were  the  subject  of  the  examination  in  chief. 

The  answer  is  that  the  question  is  sufficiently  connected  with  the 
matter  that  had  been  brought  out  before  to  justify  its  admission  un- 
der our  ruling  in  State  v.  Stuart,  35  La.  Ann.  1015. 

Judgment  affirmed. 

Todd,  J.   (dissenting).     The  common  law  recognizes  two  kinds  of  // 
principals  to  a  crime — principals  in  the  first  and  second  degree. 

A   principal   in   the   first   degree   is   the   actual   perpetrator  of  the      ) 
deed,  either  in  person  or  through  an  innocent  medium  or  irresponsible 
agent.    Wharton,  Cr.  Law  (4th  Ed.)  §  112;   1  Hale,  233,  615;   Bish-  "'" 
op,  Cr.  Law  (5th  Ed.)  §§  648,  651;   1  Arch.  Cr.  Pr.  &  PI.  (7th  Ed.) 
58. 

Principals  in  the  second  degree  are  those  who  are  present,  aiding, 
and  abetting  at  the  commission  of  the  fact.  1  Hale,  438,  439 ;  Foster, 
349,  350;  Wharton,  Cr.  Law  (4th  Ed.)  116;   Bishop  (5th  Ed.)  §  649. 

This  presence  is  either  actual  or  constructive.  Thus  it  is  a  con- 
structive presence  if  a  party  watches  for  his  companions,  the  actual 
perpetrators,  to  prevent  surprise  or  favor  their  escape,  or  give  assist- 
ance, and  is  near  enough  to  afford  it,  if  required.  Wharton  (4th  Ed.) 
§§  116,  124;    Hale,  438;    1  Arch.  pp.  58,  59;    Bishop,  §  653. 

If  a  person  is  present  aiding  and   abetting  in   some  act   makingNl 
part  of  the  offense,  although  absent  when  the  crime  is  completed  by 
his  confederates,  he  is  a  principal  with  respect  to  the  whole  of  it. 
Arch.  Pr.  &  PI.  pp.  61,  66 ;   Reg.  v.  Jordan  O'Sullivan,  7  C.  &  P.  432^ 

These  leading  authorities  shed  all  necessary  light  on  the  question 
as  to  who  are  to  be  held  as  principals  in  a  crime,  whether  in  the  first 
or  second  degree.  The  doctrine  upheld  by  these  authorities  still 
governs  in  this  state,  except  that  the  distinction  or  difference  between 
principals  in  the  first  and  second  degree  can  scarce  be  said  to  be  any 
longer  recognized. 

In  the  instant  case  the  trial  judge,  after  charging  the  jury  in  ex- 
act accord  with  the  principles  adverted  to  above,  further  charged, 
substantially,  that  although  a  party  may  be  absent  from  the  place 
where  the  crime  is  committed,  and  such  a  distance  therefrom  as  not 


272  COMBINATIONS  OF  PERSONS   IN   CRIME.  (Ch.    7 

to  be  able  to  render  any  assistance  if  required,  yet,  if  his  absence  is 
for  the  purpose  of  facilitating  the  commission  of  the  offense,  he  is 
a  principal,  and  is  constructively  present  aiding  and  abetting. 

The  question  recurs:  Does  the  proposition  conveyed  in  this  charge 
falF  within,  or  is  it  covered  by  the  doctrine  established  by,  the  au- 
thorities cited,  or  is  it  justified  and  sanctioned  by  any  known  rule  or 
principle  of  law  ? 

After  an  exhaustive  examination  of  all  authorities  on  the  subject, 
and  the  minutest  consideration,  I  am  constrained  to  answer  this  ques- 
tion in  the  negative.  So  far  from  being  supported  by  authority  or 
precedent,  I  think  it  opposed  to  the  controlling  principles  referred  to, 
and  really  inconsistent  with  the  first  part  of  the  charge  given  to  the 
i  jury,  and  the  law  therein  so  clearly  enunciated. 

If  it  should  prevail,  it  would  effectually,  in  my  opinion,  destroy 
the  distinction  so  firmly  established  between  principals  and  acces- 
sories before  the  fact. 

To  constitute  a  party  a  principal  in  the  crime  in  any  degree,  he  must 
be  a  co-operator  therein  at  the  time  of  its  commission. 

Thus  it  is  laid  down  by  Archbold  that  going  towards  or  in  the  di- 
rection of  a  place  where  a  larceny  is  committed  for  the  purpose  of 
assisting  in  carrying  off  the  property,  and  assisting  accordingly,  but 
at  such  a  distance  as  not  to  be  able  to  assist  in  the  commission  of  the 
fact,  at  the  time  of  the  felonious  taking  and  carrying  away,  did  not 
make  the  party  a  principal  in  the  larceny.  Archbold,  Cr.  PI.  &  Pr. 
p.  G6. 

And  in  the  case  presenting  a  strong  analogy  to  the  instant  one,  \%here 
an  employe  in  a  house,  in  pursuance  of  an  arrangement  n%adr.  with 
a  confederate,  admitted  this  confederate  into  the  house,  where  he  re- 
mained till  the  next  day,  when  he  stole  the  money  from  a  cashbox  in 
the  house,  during  the  absence  of  the  employe  therefrom,  it  was  held 
that  the  latter  was  not  a  principal  in  the  crime,  but  an  accessory  be- 
fore the  fact.     Reg.  v.  Jackwill  and  Perkins,  1  Car.  &  M.  215. 

Reference  is  made  in  the  brief  of  the  Attorney  General  to  two  cases 
as  supporting  the  principle  announced  in  the  charge  we  are  consider- 
ing.    These  are  Reg.  v.  Flatman,  42  L.  T.  (Eng.)  159,  and  Scales  v. 
tc,  7  Tex.  App.  3G1. 

The  first  of  those  cases  turned  on  the  effect  to  be  ascribed  to  the 
delivery  by  the  wife  of  the  husband's  goods  to  an  adulterer  and  did 
not  involve  the  general  principles  governing  the  point  or  question  un- 
der review. 

And  the  other  case  was  decided  under  a  special  statute  of  the 
state  of  Texas,  which  changed  materially  the  common  law  on  the  sub- 
ject of  principals  and  accessories.  See  Peck,  Dig.  art.  ISO!)  et  scq; 
Pen.  Code,  art.  214  et    eq. 

[    am    thus   broughl    to   the   conclusion   that   there   was  an  error  in 
omplained  of,  and  of  gravity  sufficient  to  vitiate  the  ver- 
dict of  the  jury,  and  the  sentence  based  thereon. 

I  therefore  dissent   Erom  the  opinion  <>f  the  majority. 


Sec.  2)  PRINCIPAL   IN    THE    SECOND    DEGREE.  273 

MERCERSMITH  v.  STATE. 

(Court  of  Appeals  of  Texas,  1880.     8  Tex.  App.  211.) 

White,  P.  J.1  In  our  opinion  this  cause  must  be  reversed,  be- 
cause the  court  failed  to  submit  the  law  applicable  to  the  vital  issues 
necessarily  raised  by  the  evidence  elicited  on  the  trial.  Substan- 
tially stated,  the  facts  in  brief  are  that  one  George  Purtell  and  the 
defendant  were  found  by  deceased  inside  his  house  sometime  about 
11  o'clock  at  night.  Deceased  and  his  wife  and  stepdaughter  were 
returning  from  prayer  meeting,  when,  near  his  house,  they  heard 
the  cries  and  screams  of  the  three  children,  who  had  been  left  at  home 
during  their  absence.  Deceased  hurried  on  to  see  what  the  matter 
was,  when,  stepping  inside  his  door,  he  was  immediately  fired  upon 
by  Purtell.  After  the  second  shot,  deceased  fled,  and  Purtell  pur- 
sued him  into  the  yard  and  fired  a  third  shot,  or  fourth,  according 
to  some  of  the  witnesses,  which  penetrated  about  the  knee  joint, 
severing  the  femoral  artery,  and  from  which  wound  he  died  some 
14  days  afterwards. 

At  the  time  of  the  shooting  this  appellant  was  lying  upon  a  pallet 
upon  which  the  three  children  slept,  and  had  the  eldest,  a  young  girl 
between  10  and  12  years  of  age,  in  his  arms,  with  her  clothes  up, 
and,  as  she  says,  was  choking  her.  She  and  the  other  children  were 
crying  and  hallooing.  The  door  of  the  house  had  been  broken  down 
and  torn  from  its  hinges  by  Purtell  and  defendant  when  they  effected 
their  entrance  into  the  house,  and  immediately  after  the  entry  defend- 
ant laid  down  upon  the  pallet  with  the  children,  whilst  Purtell  remain- 
ed standing  near  the  doorway.  But  a  very  few  seconds  could  have 
elapsed  from  their  entry  until  the  appearance  of  Henderson,  the  de- 
ceased, and  the  shooting  as  above  detailed.  There  was  evidence  tend- 
ing to  show  that  these  parties  had  been  at  the  house  before  to  see 
the  girls  (the  one  defendant  had  in  his  arms  when  discovered,  and 
the  stepdaughter  who  had  gone  to  prayer  meeting)  ;  the  intimation 
being  clear  that  their  object  on  these  previous  visits  was  carnal  in- 
tercourse. Whether  such  carnal  intercourse  had  taken  place  previous- 
ly is  not  made  manifest.  Other  evidence  tended  to  show  that  this 
defendant  was  quite  drunk;  but  after  the  shooting  he  got  up  and 
joined  Purtell,  when  they  both  mounted  their  horses  and  went  off  to- 
gether. 

In  a  charge  characterized  by  great  precision  for  its  declaration 
of  the  principles  of  law  relative  to  murder  of  the  first  and  second 
degrees,  the  court  further  instructed  the  jury  fully  with  regard  to 
the  general  principles  of  law  as  enunciated  in  the  Code  with  regard 
to  joint  or  principal  offenders  engaged  in  a  common  purpose  and 
actuated  by  a  common  design  in  the  accomplishment  of  an  unlaw- 

i  Tho  opinion  only  Is  printed. 
Mik.Cr.L.— 18 


274  COMBINATIONS  OF   PERSONS  IN   CRIME.  (Ch.    7 

ful  act,  and  their  reciprocal  liability  for  the  acts  of  each  other.  Pen. 
Code,  arts,  74-76,  78.  But  the  charge  failed  to  draw  the  distinction 
which  the  law  makes  between  cases  of  combination  and  conspiracy 
to  do  an  unlawful  act  and  the  liability  of  one  and  all  for  the  acts  and 
deeds  of  all  when  the  common  purpose  might  be  to  do  an  act  not  in 
itself  unlawful,  and  in  the  execution  of  which  one  of  the  parties  en- 
gaged committed  a  felony. 

In  the  case  at  bar  there  would  be  a  marked  distinction  as  to  the 
liability  of  the  parties  when  tested  by  what  was  the  common  pur- 
pose which  united  them  together  at  the  time  Purtell  alone  engaged 
in  the  shooting  which  resulted  in  the  homicide. 

If  the  common  purpose  was  to  commit  an  unlawful  act — as,  for  in- 
stance, burglary — which  would  be  evidenced  by  the  fact  that  they 
broke  down  the  door  and  forcibly  entered  the  house  at  night,  or  that 
they  broke  down  the  door  and  forcibly  entered  the  house  to  commit 
rape  (Pen.  Code,  art.  704),  then,  manifestly,  the  original  purpose 
.and  common  design  being  to  commit  a  felony,  any  act  done  by  ei- 
ther one  of  the  parties  whilst  engaged  in  the  unlawful  act  would  be 
imputed  and  attach  its  criminality  to  the  other,  and  make  each  liable 
jointly  for  whatever  either  may  have  done  in  the  general  purview 
of  the  common  design  during  the  execution  of  the  original  unlawful 
enterprise.2  But  if  the  common  undertaking  was  in  itself  not  un- 
lawful— as,  for  instance,  if  the  parties  entered  the  house,  but  in  the 
entry  did  not  intend  to  commit  burglary  or  any  other  felony  or  un- 
lawful act,  but  their  object  was  alone  to  have  carnal  intercourse 
with  the  girls,  with  whom  they  had  before  such  intercourse,  and 
whilst  the  defendant  was  in  the  act  of  accomplishing  this  object  his 
companion,  Purtell,  without  his  knowledge  or  consent,  shot  and  killed 
Henderson — in  such  event,  even  though  the  shooting  might  have 
been  done  to  enable  both  to  evade  discovery  and  effect  their  escape 
from  the  house,  the  defendant  would  not  be  liable  for  the  homicide. 
I  It  is  the  lawfulness  or  criminality  of  the  purpose  and  common 
ign  which  gives  scope  and  character  to  acts  committed  in  con- 
nection with  its  perpetration.  To  constitute  principals  in  an  offense, 
the  purpose  must  be  unlawful.  "For  if  the  original  intention  was 
lawful  and  prosecuted  by  lawful  means,  and  opposition  is  made  by 
others,  and  one  of  the  opposing  party  is  killed  in  the  struggle,  in 
that  case  the  person  actually  killing  may  be  guilty  of  murder  or  man- 
slaughter, as  circumstances  may  vary  the  case,  but  the  other  persons 
who  are  pj  d  who  do  not  actually  aid  and  abet,  are  not  guil- 

ty as  principals;    for  they  assembled  for  another  purpose,  which  was 

■  Accord:  Rei  v.  Plnmmer,  Kelyng,  109  (1701);  u.  S.  v.  Ross,  l  Gall. 
s.i  624,  Fed  Cas.  No.  16,196  (1813);  State  v.  Maloy,  44  Iowa,  104  (1876); 
Weston  v.  Commonwealth,  111  Pa.  261,  2  aii.  r.n  (1885);  Gibson  v.  State,  80 
\ hi.  121,  8  South.  98,  L8  Am.  St.  Rep,  96  (1889);  English  v.  State,  84  Tex. 
'  P.  R.  190,  30  S.  \Y.  288  (1896);  State  v.  Camion,  49  S.  O.  550,  27  S.  E.  526 
(1807). 


Sec.  2)  PRINCIPAL   IN   THE   SECOND    DEGREE.  275 

lawful,  and  consequently  the  guilt  of  the  person  actually  killing  can- 
not by  any  fiction  of  law  be  carried  against  them  beyond  their  original 
intention."  Fost.  354;  2  Hawk.  P.  C.  c.  29,  §  9;  2  Archb.  Cr.  Pr. 
&  PI.  (6th  Ed.)  251-257,  and  note. 

But  Mr.  Wharton  says:  "It  should  be  observed,  however,  that, 
while  the  parties  are  rcspqnsibIe~i"or  collateral  acts  growing  out  of 
the  general  design.  they_are  nnr  fnr  inrlq^nrlpnf  acts  growing  out 
of  the  particular  malice  of  individuals.  Thus,  if  one  of  the  party  of 
his  own  head  turn  aside  to  commit  a  felony  foreign  to  the  original 
design,  his  companions  do  not  participate  in  his  guilt."  Whart.  on 
Horn.  §  202. a  Yet,  "where  two  persons  go  out  for  the  common 
purpose  of  robbing  a  third  person,  and  one  of  them,  in  pursuit  of  such 
common  purpose,  kill  such  third  person  under  such  circumstances 
as  to  make  it  murder  in  him  who  does  the  act,  then  it  is  murder  in 
the  other."  Id.  §  338;  Ruloff  v.  People,  45  N.  Y.  213;  Green  v. 
State,  13  Mo.  382;  1  Bishop's  Cr.  Law  (4th  Ed.)  §  435;  Hanna 
v.  People,  86  111.  243. 

Nor  is  it  necessary  that  the  common  guilty  purpose  of  resisting 
to  the  death  any  person  who  should  endeavor  to  apprehend  them 
must  have  been  formed  when  the  parties  went  out  with  the  common 
design  of  committing  the  unlawful  act,  to  render  all  principals  in  a 
murder  by  one  of  them  perpetrated  whilst  making  such  resistance. 
Ruloff  v.  People,  45  N.  Y.  213;  State  v.  Nash,  7  Iowa,  350;  Moody 
v.  State,  6  Cold.  (Tenn.)  299. 

In  the  case  of  People  v.  Knapp,  26  Mich.  112,  it  was  held  "that 
where  parties  combine  to  commit  an  offense,  and  a  homicide  is  com- 
mitted by  part  of  them  in  an  attempt  to  escape,  one  who  did  not 
consent  and  was  not  privy  in  fact  to  the  homicide  cannot  be  held 
responsible  by  reason  of  the  original  combination.  There  can  be 
no  responsibility  against  one  who  is  not  himself  engaged  in  the  acts 
of  his  associates,  unless  it  is  within  the  scope  of  the  combination  to 
which  he  was  a  party,  and  thus  authorized  as  his  joint  act." 

It  is  unnecessary  that  we  should  discuss  the  other  questions  in 
the  case. 

The  judgment  of  the  court  below  will  be  reversed,  in  order  that 
upon  another  trial  the  court  may  submit  the  principles  of  law  ap- 
plicable to  the  issues  as  we  have  presented  them  in  the  foregoing 
opinion. 

Reversed  and  remanded. 

s Accord:  Scott  v.  State,  46  Tex.  Cr.  R.  53G,  81  S.  W.  294,  108  Am.  St.  Rep. 
1032   (1904). 


-76  COMBINATIONS  OF  PERSONS   IN   CRIME.  (Ch.    7 

STATE  v.  ALLEN. 

(Supreme  Court  of  Errors  of  Connecticut,  1879.    47  Conn.  121.) 

Indictment  for  murder  in  the  Superior  Court  for  Hartford  county. 
The  prisoner  was  indicted  with  Harry  Hamlin  and  John  H.  Davis 
for  the  murder  of  Welles  Shipman,  a  watchman  at  the  state  prison; 
the  murder  having  been  committed  in  an  attempt  of  the  defendant 
and  Hamlin,  who  were  convicts,  to  escape  from  the  prison.  The 
jury  found  a  verdict  of  murder  in  the  first  degree.  The  defendant 
thereupon  moved  for  a  new  trial  for  error  in  the  rulings  and  charge 
of  the  court,  and  also  filed  a  motion  in  error.1 

T.i.ARDSLEY,  J.  The  motion  for  a  new  trial  shows  that  upon 
the  trial  it  was  claimed  by  the  state  that  the  accused  and  one  Henry 
Hamlin,  both  of  whom  were  lawfully  confined  in  the  state  prison, 
conspired  to  escape  from  such  confinement,  and  to  use  all  means 
which  might  become  necessary  to  effect  such  escape,  even  to  the 
taking  of  the  life  of  any  one  who  might  oppose  them,  should  it  be- 
come necessary  to  do  so  in  order  to  overcome  such  opposition;  that 
in  pursuance  of  such  combination  they  provided  themselves  with 
two  loaded  revolver  pistols,  one  a  seven-shooter,  and  the  other  a  four- 
shooter,  and  with  handcuffs  and  a  gag,  and  on  the  evening  of  Septem- 
ber 1,  1877,  escaped  from  their  cells  and  secreted  themselves  in  the 
hall  of  the  prison,  where  they  were  discovered  by  Welles  Shipman, 
an  armed  night  watchman  of  the  prison,  and  that  thereupon  they  both 
fired  at  Shipman,  who  was  wounded  by  one  of  the  shots,  and  died 
from  such  wound  on  the  next  day ;  and  that  after  Shipman  was 
wounded  he  ran  towards  the  alarm  bell,  pursued  by  the  accused  and 
Hamlin,  who  overtook  him,  when  he  sank  insensible  upon  the  cor- 
ridor, and  was  then  handcuffed  and  gagged  by  them ;  that  Allen 
then  went  to  his  cell  about  150  feet  distant,  leaving  Hamlin  with 
Shipman,  where  he  was  discovered  and  fired  at  by  the  guard  of  the 
prison;  and  that  thereupon  Hamlin  went  to  the  cell  of  Allen,  and 
that  both  then  broke  into  the  attic  and  were  taken  the  next  morning. 
The  state  claimed  that  Shipman  was  shot  before  he  was  handcuffed. 

It  was  claimed  by  the  defense  that,  if  there  was  any  conspiracy 
between  the  accused  and  Hamlin,  it  was  merely  to  bribe  an  officer 
of  the  prison  to  permit  them  to  escape,  and  that  whatever  was  done 
after  Shipman  discovered  the  accused  and  Hamlin  was  not  in  pur- 
suance of  any  plan  or  conspiracy,  and  that  immediately  after  Ship- 
man  was  handcuffed  and  gagged  Allen  abandoned  the  enterprise 
and  went  to  his  cell,  and  that  Shipman  was  afterwards  shot  by  Ham- 
lin alone. 

The  court  charged  the  |ury  as  follows:  "If  the  jury  shall  find 
that  Hamlin  and  Allen,  at  some  time  previous  to  the  homicide,  made 

up  their  minds  in  concert  to  break  the  state  prison   and  escape  there- 
i  The  statement  is  abridged,  and  part  of  the  opinion  is' omitted. 


fjfyQwX^i 


SeC.  2)  PRINCIPAL   IN    THE    SECOND    DEGREE.  277 

from  at  all  hazard,  and  knowing-  that  the  enterprise  would  he  a  dan- 
gerous one  and  expose  them  to  be  killed  by  the  armed  night  watch- 
man of  the  prison,  should  they  be  discovered  in  making  the  attempt, 
willfully,  deliberately,  and  premeditatedly  determined  to  arm  them- 
selves with  deadly  weapons,  and  kill  whatever  watchman  should  op- 
pose them  in  their  attempt,  and  if  the  jury  should  further  find  that 
in  pursuance  of  such  design  they  armed  themselves  with  loaded  re- 
volvers to  carry  their  original  purpose  into  execution,  and  while  en- 
gaged in  efforts  to  escape  from  the  prison  were  discovered  by  the 
watchman,  Shipman,  the  deceased,  and  in  the  scuffle  which  ensued 
he  was  willfully  killed  by  Hamlin  or  Allen  while  they  were  acting 
in  concert  and  in  pursuance  of  their  original  purpose  so  to  do  in  just 
such  an  emergency  as  they  now  found  themselves  in,  then  Hamlin 
and  Allen  are  both  guilty  of  murder  in  the  first  degree.  And  in  the 
opinion  of  the  court  Allen  would  be  guilty  of  murder  in  the  first  degree, 
if,  in  the  state  of  things  just  described,  he  in  fact  abandoned,  just 
before  the  fatal  shot  was  fired  by  Hamlin,  all  further  attempt  to 
escape  from  the  prison,  and  the  infliction  of  further  violence  upon 
the  person  of  Shipman,  without  informing  Hamlin  by  word  or  deed 
that  he  had  so  done,  and  Hamlin,  ignorant  of  the  fact,  shortly  after 
fired  the  fatal  shot  in  pursuance  of  and  in  accordance  with  the  pur- 
pose of  the  parties  down  to  the  time  of  the  abandonment." 

We  do  not  think  that  the  objection  made  by  the  defense  to  this 
part  of  the  charge  is  well  founded.  Under  such  circumstances,  Al- 
len's so-called  abandonment  would  be  but  an  operation  of  the  mind — 
a  secret  change  of  purpose.  Doing  nothing  by  word  or  deed  to  in- 
form his  co-conspirator  of  such  change  of  purpose,  the  reasonable 
inference  would  be  that  he  did  not  intend  to  inform  him  of  it,  and 
thus  he  would  be  intentionally  encouraging  and  stimulating  him  to 
the  commission  of  the  homicide  by  his  supposed  co-operation  with 
him.  Such  intent  not  to  inform  Hamlin  of  his  change  of  purpose 
would,  under  the  circumstances,  be  decisive  of  his  guilt.  \ 

But  the  charge  proceeds:  "In  other  words,  if  during  the  fatal  "p^  ^o^fxo^ 
encounter  with  deadly  weapons,  in  the  state  of  things  just  described,  S 
Allen  suddenly  abandoned  Hamlin,  abandoned  the  enterprise,  and 
went  to  his  cell  without  saying  a  word  to  Hamlin  to  the  effect  that  he 
had  abandoned  the  enterprise,  and  Hamlin,  supposing  that  he  was 
still  acting  with  him  and  that  he  had  gone  to  his  cell  for  an  instru- 
ment to  carry  on  the  encounter,  fired  the  fatal  shot,  his  abandonment 
under  such  circumstances  would  be  of  no  importance.  A  man  can- 
not abandon  another  under  such  circumstances  and  escape  the  con- 
sequences of  the  aid  he  has  rendered  up  to  the  time  of  the  abandon- 
ment." 

A  majority  of  the  court  think  that  the  jury  may  have  been  misled 
by  this  part  of  the  charge,  and  that  therefore,  especially  in  view 
of  the  grave  issues  involved  in  this  case,  a  new  trial  should  be  granted. 

If  Allen  did  in  fact  before  the  homicide  withdraw  from  the  con- 


278  COMBINATIONS   OF   PERSONS   IN   CRIME.  (Cll.    7 

piracy,  abandon  the  attempt  to  escape,  and  with  the  knowledge  of 
Hamlin  leave  and  go  to  his  cell,  Hamlin's  misconstruction  of  his 
purpose  in  leaving  did  not  necessarily  make  his  conduct  of  no  im- 
portance. 

Until  the  fatal  shot  there  was  the  "locus  penitentise."  To  avail 
himself  of  it  Allen  must  indeed  have  informed  Hamlin  of  his  change 
of  purpose,  but  such  information  might  be  by  words  or  acts;  and 
if,  with  the  intention  of  notifying  Hamlin  of  his  withdrawal  from  the 
conspiracy,  he  did  acts  which  should  have  been  effectual  for  that  pur- 
pose, but  which  did  not  produce  upon  the  mind  of  Hamlin  the  effect 
which  he  intended  and  which  they  naturally  should  have  produced, 
such  acts  were  proper  for  the  jury  to  consider  in  determining  the 
relation  of  Allen  to  the  crime  which  was  afterwards  committed. 

Allen's  act  of  leaving  and  going  to  his  cell,  if  he  did  so,  had  some 
significance  in  connection  with  the  question  of  intention  and  notice, 
and  was  therefore  proper  for  the  consideration  of  the  jury.  How 
much  weight  was  to  be  given  to  it  would  depend  upon  circumstances, 
such  as  the  situation  of  the  parties  and  the  opportunity  for  verbal 
or  other  notice. 

The  same  observations  are  perhaps  applicable  to  the  charge  of  the 
court  in  answer  to  the  sixth  request  for  instructions.  While  it  is 
clear  that  the  request  as  made  should  not  have  been  complied  with, 
the  charge  that  was  given  may  be  open  to  the  implication  that  some 
notice  of  Allen's  abandonment  of  the  conspiracy  must  have  been 
given  by  him  to  Hamlin  beyond  that  afforded  by  his  act  of  leaving. 

The  answers  of  the  court  to  the  other  requests  for  instructions 
seem  to  us,  in  view  of  the  claims  of  the  counsel  and  the  admitted 
facts  in  the  case,  to  be  correct  and  sufficiently  explicit. 

A  new  trial  is  advised. 

Granger,  Sanford,  and  Hovfy,  J  J.,  concurred.  Loomis,  J.,  dis- 
sented. 


SECTION  3.— ACCESSORY  BEFORE  THE  FACT. 


Accessories,  again,   are  of  two  kinds — accessories   before   the   fact 
committed,  and  accessories  after. 

An  accessory  before  is  he  that,  being  absent  at  the  time  of  the 
felony  committed,  doth  yet  procure,  counsel,  command  or  abet  an- 
other to  commit  a  felony,  and  it  is  an  offense  greater  than  the  acces 
sory  after;  and  therefore  in  many  cases  clergy  is  taken  way  from 
accessories  before,  which  yet  is  not  taken  away  from  accessories  after, 
as  in  petit  treason,  murder,  robbery,  and  willful  burning  by  St.  4 
&  S  r.  M.  c.  4.    Hale,  P.  C  c.  55. 


Sec.  3)  ACCESSORY    BEFORE    THE    FACT.  279 

This  kind  of  accessory  after  the  fact  is  where  a  person,  knowing 
the  felony  to  be  committed  by  another,  receives,  relieves,  comforts, 
or  assists  the  felon.  This,  as  hath  been  said,  holds  place  only  in 
felonies,  and  in  those  felonies  where,  by  the  law,  judgment  of  death 
ought  regularly  to  ensue,  and  therefore  there  is  no  accessory  in  petit 
larceny,  homicide  per  infortunium,  or  homicide  se  defendendo.  15 
Edw.  Ill,  Coron.  116.    Hale,  P.  C.  c.  56. 


REX  v.  KELLY. 
(Coxirt  for  Crown  Cases  Reserved,  1820.     Russ.  &  R.,  421.) 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley 
at  the  Summer  Assizes  for  Carlisle,  in  the  year  1820,  of  stealing  two 
horses. 

It  appeared  in  evidence  that  the  prisoner  and  one  Whinroe  went  to 
steal  the  horses.  Whinroe  left  the  prisoner  when  they  got  within  half 
a  mile  of  the  place  where  the  horses  were.  Whinroe  stole  the  horses, 
and  brought  them  to  the  place  where  the  prisoner  was  waiting  for 
him,  and  then  the  prisoner  and  Whinroe  rode  away  with  them. 

The  learned  judge  thought  the  owner's  possession  was  not  destroy- 
ed by  Whinroe's  theft,  and  that  the  prisoner's  joining  in  riding  awav 
with  the  horses  might  be  considered  as  a  new  larceny;  but,  upon  ad- 
verting to  the  case  of  Rex  v.  King,  before  the  judges  in  Easter  Term. 
1817,  he  thought  his  first  opinion  wrong,  and  reserved  the  case  for 
the  consideration  of  the  judges. 

In  Michaelmas  Term,  1820,  the  judges  met  and  considered  this 
case.  They  held  the  conviction  wrong,  being  of  opinion  that  the  pris- 
oner was  an  accessory  only,  and  not  a  principal,  because  he  was  not 
present  at  the  original  taking. 


t^ 


Parke,  J.,  in  REX  v.  COOPER,  5  Car.  &  P.,  535  (1833) :  With 
respect  to  an  accessory  before  the  fact,  it  is  not  necessary  that  there  / 
should  be  any  direct  communication  between  the  accessory  and  the 
principal.  It  is  enough  if  the  accessory  direct  an  intermediate  agent 
to  procure  another  to  commit  the  felony;  and  it  will  be  sufficient, 
even  though  the  accessory  does  not  name  the  person  to  be  procured, 
but  merely  directs  the  agent  to  employ  some  person. 


280  COMBINATIONS  OF  PERSONS  IN   CRIME.  (Ch.    7 

REGINA  v.  TRACY. 
(Queen's  Bench,  1703.     6  Mod.  30.) 

Tracy,  a  justice  of  the  peace  for  Middlesex,  was  indicted,  for  that 
he,  together  with  Taylor  and  Jeoffries,  by  pretense  of  a  certain  war- 
rant in  writing,  supposed  to  be  signed  and  sealed  by  Sir  Simon  Lovell, 
recorder  of  London,  did  arrest  J.  Muriel,  and  brought  him  before 
J.  Chamberlain,  a  justice  of  the  peace  for  Middlesex,  although  the 
warrant  was  not  directed  to  any  of  them,  and  although  it  was  forged 
and  counterfeited  to  Tracy's  knowledge;  and  that  Tracy,  when  Mu- 
riel was  before  the  justice  of  the  peace,  persuaded  him  to  refuse  to 
bail  him,  though  the  fault  being  a  misdemeanor  was  in  its  nature 
bailable;  and  that  when  J.  Muriel  was  committed  by  the  justice,  Tracy 
and  the  other  two,  at  the  persuasions  and  instance  of  Tracy,  extorted 
divers  sums  of  money  from  him. 

The  jury  acquitted  the  defendant  of  the  forgery,  and  of  knowing 
that  the  warrant  was  forged,  and  found  him  guilty  of  all  of  the  rest. 

Wells  and  Parker  now  moved  in  arrest  of  judgment. 

Fifthly.1  As  to  some  part  of  the  charge,  they  charge  him  as  ac- 
cessory, when,  it  being  trespass,  they  are  all  principals,  and  it  ought 
to~be  charged  as  such. 

Holt,  Chief  Justice.  As  to  the  fifth  objection,  that  he  is  not  in 
some  things  charged  as  a  principal.  It  is  to  be  known,  that  a  fact 
which  would  make  one  accessory  in  felony,  in  treason,  and  in  trespass, 
I  makes  him  a  principal;  and  sure  one  may  lay  the  matter  either  way. 
viz.,  making  him  principal  or  laying  it  special,  as  it  will  appear  upon 
evidence.  In  treason  all  are  principals;  and  if  upon  the  statute  of 
Edw.  Ill,  c.  2,  one  conspires  the  death  of  the  queen,  and  is  com- 
mitted to  prison  for  the  same,  and  one  procures  him  to  escape,  or 
harbors  him  after  such  time  as  he  knows  him  charged  with  treason, 
or  to  have  committed  treason,  you  may  indict  him  upon  the  special 
matter,  that  A  committed  treason,  that  B  knew  of  it  and  received  him ; 
and  yet  this  is  not  one  of  the  treasons  mentioned  by  that  statute,  but 
it  is  so  by  necessary  consequence  of  law.  As  if  a  thing  be  made  a 
felony,  all  accessories  before  and  after  are  felons  in  consequence;  and 
if  "in  offense  which  is  felony  be  made  treason,  they  that  would  have 
been  accessories  before  shall  now  be  principals.2 

i  Only  so  much  of  tliis  enso  ;is  relates  to  accessories  is  printed. 

> Accord :  Misdemeanor,  Commonwealth  v.  Gillespie,  7  s<tu'.  &  it.  (Pa.)  469, 
in  Am.  Dec.  )7r.  (1822);  Reg.  v.  Moland,  2  Moo.  276  (1842);  Lowensteln  v. 
People  -"'I  Barb.  (N.  v.)  209  (1868);  State  v.  Dewer,  66  N.  ('.  672  (1871); 
Wagner  v.  State,  !■"•  N<  b.  i.  <'>i  \.  W.  86  (1894) ;  Bliss  v.  U.  S.,  105  Fed.  608.  44 
c.  0.  a.  824  (1900);  treason,  Throgmorton's  Case,  1  Dyer,  98b  (1553).  But 
see  u.  S.  v.  Burr,  4  Crancn  (U.  B.)  469  (1807). 


Sec.  3)  ACCESSORY   BEFOUE   THE    FACT.  2S I 

SAUNDERS'  CASE. 
(Warwick  Assizes,  1571.    2  Plow.  473.) 

Reporter's  Note. —  It  seems  to  me  reasonable  that  he  who  advises 
or  commands  "aii  unlawful  thing  to  be  done  shall  be  adjudged  ac- 
cessary to  all  that  follows  from  that  same  thing,  but  not  from 
any  other  distinct  thing.  As  if  I  command  a  man  to  rob  such  a  one, 
and  he  attempts  to  rob  him,  and  the  other  defends  himself,  and  a 
combat  ensues  between  them,  and  the  person  attempted  to  be  robbed 
is  killed,  I  shall  be  accessary  to  this  murder,  because  when  he  at- 
tempted to  rob  him,  he  pursued  my  command,  and  then  when  he  pur- 
sued my  command,  and  in  the  execution  thereof  another  thing  hap- 
pened, I  ought  in  reason  to  be  deemed  a  party  therein,  because  my 
command  was  the  cause  of  it.  So  if  I  command  one  to  beat  another, 
and  he  beats  him  so  that  he  dies  thereof,  I  shall  be  accessary  to  this 
murder,  for  it  is  a  consequence  of  my  command,  which  was  the  origi- 
nal foundation  thereof,  and  which  naturally  tended  to  endanger  the 
life  of  the  other.  So  if  I  command  one  to  burn  the  house  of  J.  S. 
feloniously  in  the  night,  and  he  does  so,  and  the  fire  thereof  burns 
another  house,  I  shall  be  accessary  to  the  burning  of  the  other  house, 
so  that  altho'  I  am  afterwards  pardoned  for  being  accessary  to  the 
burning  of  the  house  of  J.  S.  yet  shall  I  be  hanged  for  the  burning  of 
the  other  house,  for  inasmuch  as  the  burning  of  the  second  house  fol- 
lowed from  my  command,  and  I  am  clearly  accessary  to  the  burning 
of  the  first  house,  I  ought  also  in  reason  to  be  adjudged  accessary  to  »/. 
all  that  followed  from  the  burning  of  the  first  house.  But  if  I  com-  Ar 
manded  him  to  burn  the  house  of  such  a  one,  whom  he  well  knows, 
and  he  burns  the  house  of  another,  there  I  shall  not  be  accessary  to 
this,  because  it  is  another  distinct  thing  to  which  I  gave  no  assent  nor 
command,  but  wholly  different  from  my  command.  As  if  I  command 
one  to  steal  a  horse,  and  he  steals  an  ox,  or  if  I  command  him  to  steal 
a  white  horse  and  he  steals  a  yellow  horse,  this  differs  directly  from  my 
command,  and  my  consent  cannot  be  carried  over  to  it,  for  there  is  not 
the  least  connection  or  affinity  between  this  act  and  my  command. 
And  so  if  I  command  a  person  to  rob  such  a  goldsmith  of  his  plate 
in  such  a  place  as  he  is  going  to  Sturbridgefair,  and  he  breaks  open 
his  house  in  Cheapside,  and  he  steals  his  plate  from  thence,  I  shall 
not  be  accessary  to  this  burglary,  because  it  is  a  felony  of  another 
kind  from  that  which  I  commanded.  But  if  I  command  one  to  kill 
another  by  poison,  and  he  kills  him  with  a  sword,  or  if  I  command  one 
to  kill  another  in  the  fields  and  he  kills  him  in  the  city  or  church,  or 
I  command  him  to  kill  him  such  a  day,  and  he  kills  him  another 
day,  there  I  shall  be  accessary  to  the  murder,  because  the  death  is  the 
principal  matter,  which  has  followed  from  my  command,  and  the 
place,  instrument,  time,  and  the  like,  are  but  the  manner  and  form 
how  the  death  of  the  party  shall  be  effected,  and  not  the  substance  of 


XX 


282  COMBINATIONS  OF  PERSONS   IN  CRIME.  (Ch.    7 

the  matter,  and  a  variance  in  the  formal  part  of  the  execution  of  the 
command  shall  not  discharge  a  man  from  being  accessary.  But  yet 
in  some  cases  the  time  may  be  material;  for  if  I  command  one  to 
kill  J.  S.  and  before  the  fact  done  I  go  to  him  and  tell  him  that  I  have 
repented,  and  expressly  charge  him  not  to  kill  J.  S.  and  he  afterwards 
kill  him,  there  I  shall  not  be  accessary  to  this  murder,  because  I  have 
countermanded  my  first  command,  which  in  all  reason  shall  discharge 
me,  for  the  malicious  mind  of  the  accessary  ought  to  continue  to  do 
ill  until  the  time  of  the  act  done,  or  else  he  shall  not  be  charged ;  but 
if  he  had  killed  J.  S.  before  the  time  of  my  discharge  or  countermand 
given,  I  should  have  been  accessary  to  the  death,  notwithstanding  my 
orivate  repentance. 


(A 


BIBITHE'S  CASE. 

(King's  Bench,  1596.    4  Coke,  43.) 

John  Goff,  brother  and  heir  of  R.  Goff,  brought  an  appeal  of  mur- 
der of  the  said  R.  G.,  against  Bibithe  as  principal,  and  against  Hoell 
David  as  accessory  before,  and  against  David  ap.  Thomas  as  acces- 
sory after;  the  principal  pleaded  not  guilty,  and  by  nisi  prius  in 
the  county  of  Monmouth  he  was  found  guilty  of  manslaughter,  and 
not  guilty  of  murder,  and  had  his  clergy:  and  upon  this  matter  first 
it  was  resolved  by  Popham,  C.  J.,  et  per  tot'  cur',  in  B.  R.,  that  Hoell 
I)  David  was  discharged,  because  he  could  not  be  accessory  beforeTTie 
fact  in  case  of  manslaughter,  for  manslaughter  ought  to  ensue  upon 
a  sudden  debate  or  affray,  for  if  it  is  premeditated  it  is  murder.1  2. 
It  was  resolved,  that  although  the  principal  was  convicted  by  verdict, 
yet  forasmuch  as  he  had  his  clergy  before  judgment,  so  that  it  does 
not  appear  judicially,  sc.  by  judgment  of  the  law  that  he  was  a  princi- 
pal, therefore,  and  for  the  causes  alleged  in  Syer's  Case,  it  was  award- 
ed, that  both  the  accessories,  as  well  before  as  after,  should  be  dis- 
charged. The  same  law,  if  the  principal  upon  arraignment  confesses 
the  felony,  and  before  judgment  obtains  a  pardon,  or  has  his  clergv 
allowed,  the  accessory  thereby  is  discharged,  vide  2  E.  3,  27,  22  E.  3. 
Corone  2G  t,  7  H.  4,  16.  10  H.  4,  5.  3  H.  7,  1.  B.  &  3  H.  7.  Corone  53. 
And  upon  divers  disagreeing  opinions,  you  will  understand  the  law, 
as  here  it  was  adjudged  upon  consideration  of  all  the  books.2 

Lecord:  Bowman  v.  State  (Tex.  Or.  App.)  20  S.  W.  558  (1892).  Compare 
v.  Qaylor,  i  Dears.  A  B.  288  (1851). 
•  'iiii'  distinction  between  principals  and  accessories  before  the  fact  has  been 
abolished  by  statute  in  some  states.  Under  iiics<'  statutes  it  is  generally 
held  thai  an  accessory  may  be  Indicted  ;is  m  principal.  S(^  Campbell  v.  Com- 
monwealth, si  Pa.  187  (1877);  Baxter  v.  People,  2  Oilman  (111.)  578  (1845); 
People  v.  Davidson,  5  Oal.  184  (1855);  State  v.  Berger,  121  Iowa,  681,  96  N. 
\v.  1094  (l'joa). 


Sec.  4) 


ACCESSORY   AFTER   THE    FACT. 


283 


SECTION  4.— ACCESSORY  AFTER  THE  FACT. 


ROBERT'S  CASE. 


Gm^&eiuj''*/' 


(Queen's  Bench,  1509.    3  Co.  Inst.  138.) 

Catlin  and  Browne,  Justices  of  Assize  in  the  county  of  Suf- 
folk, put  this  case  to  all  the  judges.  A  man  committed  felony 
in  the  county  of  Suffolk,  for  which  he  was  committed  to  the  gaol, 
and  R.,  an  attorney,  advised  the  friends  of  the  felon  to  persuade  the 
witnesses  not  to  appear  to  give  evidence  against  him,  which  was 
done  accordingly;  and  it  was  resolved  that  neither  the  friends  nor 
the  attorney  were  accessories  to  the  felony,  but  that  it  was  a  great 
contempt  and  misprision,  for  which  they  might  be  fined  and  im- 
prisoned.1 


STATE  v.  DAVIS. 

(Supreme  Court  of  Rhode  Island,  1883.    14  R.  I.  281.) 

Exceptions,  to  the  court  of  common  pleas.     Providence. 
DurFEE,  C.  J.     This  is  an  indictment  for  the  violation  of  Pub. 


St. 


R.  I.  1882,  c.  247,  §  3,  which  reads  as  follows,  to  wit:  "Every  per- 
son not  standing  in  the  relation  of  husband  or  wife,  parent  or  grand- 
parent, child  or  grandchild,  brother  or  sister,  by  consanguinity  or 
affinity  to  another  who  shall  have  committed  any  offense  or  been  ac- 
cessory before  the  fact  to  the  commission  of  any  offense,  who  shall  be 
convicted  of  knowingly  harboring  or  relieving  such  other  person,  with 
intent  that  he  shall  escape  or  avoid  detection,  arrest,  trial,  or  pun- 
ishment, shall  be  imprisoned  not  exceeding  five  years  or  be  fined  not 
exceeding  one  thousand  dollars."  In  the  indictment,  found  in  the 
court  of  common  pleas,  the  offense  was  charged  in  manner  following. 
to  wit:  That  at  Newport,  on  the  15th  day  of  March,  1883,  the  de- 
fendants "did  then  and  there  knowingly  harbor  and  relieve  another, 
to  wit,  one  George  H.  Rounds,  with  the  intent  that  he  the  said  Rounds 
should  then  and  there  avoid  detection,  arrest,  trial,  and  punish- 
ment, he,  the  said  George  H.  Rounds,  having  then  and  there  committed 
an  offense,  to  wit,  the  offense  of  entering  a  dwelling  house  in  the  day- 
time, with  intent  to  commit  larceny  therein ;  the  said  Thomas  T. 
Davis,  and  the  said  George  T.  Davis  and  the  said  Patrick  White  not 
then  and  there  standing  in  the  relation  of  husband  or  wife,  parent  or 
grandparent,  child  or  grandchild,  brother  or  sister,  by  consanguinity 

1  Compounding  a  crime  does  not  make  the  one  compounding  an  accessory 
after  the  fact.  Chenault  v.  State,  46  Tex.  Cr.  R.  351,  81  S.  W.  971  (1904), 
overruling  Gatlin  v.  State,  40  Tex.  Cr.  R.  116,  49  S.  W.  S7  (1S99). 


CyV^\£ 


l<*qi*.\lS^  Ot    A-- 


;</Lc-"f 


H  . 


284  COMBINATIONS    OF   PERSONS   IN    CRIME.  •   (Ch.   7 

or  affinity  to  the  said  George  H.  Rounds."  The  defendants  moved 
the  court  below  to  quash  the  indictment  for  insufficiency,  and  the  court 
overruled  the  motion.  The  defendant  excepted,  and  now,  after  ver- 
dict of  guilty  against  George  T.  Davis,  he  brings  the  cause  to  this 
court  for  revision. 

The  defendant  contends  that  the  indictment  is  defective,  in  that  it 
does  not  allege  that  the  defendants  harbored  and  relieved  Rounds, 
knowing  that  he  had  committed  the  crime  which  he  is  alleged  to  have 
committed;  such  knowledge  being  a  necessary  ingredient  of  the  of- 
fense under  the  statute.  If  the  knowledge  be  a  necessary  ingredient, 
we  think  the  knowledge  should  have  been  alleged  with  certainty,  and 
that  the  indictment  is  bad  for  want  of  the  allegation. 

The  Attorney  General  contends  that  the  knowledge  is  not  necessary, 
because  if  it  be  necessary,  a  person  may  harbor  or  relieve  another  with 
impunity,  so  long  as  he  is  ignorant  of  the  particular  offense  which  the 
other  has  committed,  though  he  knows  perfectly  well  that  he  has 
committed  an  offense  and  is  fleeing  from  arrest,  and  though  his  pur- 
pose in  harboring  or  relieving  him  is  to  aid  his  escape.  If  the  knowl- 
edge be  necessary,  argues  the  Attorney  General,  he  may  safely  har- 
bor and  hide  a  convict  fleeing  from  prison  in  his  prison  garb,  with 
the  officers  of  the  law  in  hot  pursuit,  if  only  he  be  ignorant  of  the 
particular  offense  which  the  fugitive  has  committed.  The  argument 
against  the  construction  contended  for  by  the  defendant  is  certainly 
very  cogent.  But,  on  the  other  hand,  if  the  statute  is  not  to  be  so  con- 
strued, the  word  "knowingly"  in  the  statute  is  superfluous,  having  no 
meaning  which  is  not  necessarily  implied  without  it.  Moreover,  if 
the  statute  is  not  to  be  so  construed,  a  person  who  harbors  another, 
knowing  that  he  has  committed  some  petty  misdemeanor,  and  sim- 
ply intending  to  help  him  escape  arrest  for  it,  may  be  convicted  under 
an  indictment  in  which  the  principal  offense  alleged  is  murder  or  some 
other  heinous  crime,  knowing  of  which  he  would  have  recoiled  from 
harboring  the  criminal. 

These  are  views  which  strike  the  mind  on  simply  reading  the  stat- 
ute, without  reference  to  its  history  or  antecedents.  We  think,  how- 
ever, that  the  statute  cannot  be  fairly  construed  without  reverting  to  the 
common-law  offense  which  was  superseded  by  it,  and  tracing  the 
statute  to  its  present  form.  Evidently  the  statutory  offense  was  in- 
tended to  take  the  place  of  the  common-law  offense  of  being  an  ac- 
cessory after  the  fact.  At  common  law  an  accessory  after  the  fact 
is  one  who,  knowing  a  felony  has  been  committed  by  another,  re- 
ceives, relieve  .  comfort  ists  the  felon.  "To  constitute  an  ac- 
cessory after  the  fact,"  it  is  said,  "three  things  are  requisite:  The 
felony  must  he  completed;  he  must  know  that  the  felon  is  guilty; 
and  he  must  receive,  relieve,  comfort,  or  assist  him."  1  Archbdlfl, 
Crim.  Prac.  &  Plead.  (8th  Ed.)  17,  note  2.  These  being  requisites 
of  the  offense,  it  was,  of  course,  necessary  to  allege  them  in  the  indict- 
ment;   and  so  are  the  forms  or  precedents.     Id.  75,  7G.     By  the  old 


Sec.  4)  ACCESSORY   AFTER   THE    FACT.  285 

common  law  the  principal  and  the  accessory  were  liable  to  the  same 
punishment,  and  no  man  could  be  tried  as  accessory  after  the  fact 
till  after  the  principal  felon  was  convicted.  We  do  not  find  any  stat- 
ute of  the  state  changing  this  common  law  until  A.  D.  1798.  Sec- 
tion 20  of  "an  act  to  reform  the  penal  laws,"  contained  in  the  Digest 
of  1798  (Pub.  Laws,  p.  591),  provides  "that  every  person  who  shall 
knowingly  receive,  harbor,  conceal,  maintain,  assist,  or  relieve  any 
person  or  persons  who  have  committed  any  of  the  crimes  aforesaid, 
or  hereafter  mentioned,  although  the  principal  offender  cannot  be 
taken  so  as  to  be  prosecuted,  is  and  shall  be  considered  an  accessory 
after  the  fact,  and  shall  be  fined  not  exceeding  five  hundred  dollars, 
and  be  imprisoned  not  exceeding  two  years."  The  section  seems  to 
have  been  intended  to  change  the  common  law  in  three  particulars, 
namely:  First,  to  make  it  extend  to  the  harboring  of  others  besides 
felons;  second,  to  mitigate  or  limit  the  punishment;  and,  third,  to 
make  the  accessory  liable  to  trial  and  punishment,  "although .  the 
principal  offender  cannot  be  taken  so  as  to  be  prosecuted."  We  see 
no  reason  to  think  that  any  other  change  was  contemplated.  The  of- 
fender is  denominated  an  "accessory  after  the  fact."  The  offense, 
therefore,  subject  to  the  alterations  effected  by  the  statute,  ought  to 
be  deemed  to  have  the  character  of  the  common-law  offense.  If  so, 
then  knowledge  on  the  part  of  the  accessory,  not  only  that  the  princi- 
pal offense  had  been  committed,  but  also  that  the  person  harbored 
had  committed  it,  was  a  necessary  ingredient  in  the  accessory  of- 
fense. We  think  there  can  be  no  doubt  that  the  word  "knowingly," 
as  used  in  the  section,  was  intended  to  have  that  meaning.  The  sec- 
tion was  re-enacted  without  change  in  the  Digest  of  1822.  In  the 
Digest  of  1844  the  section  was  altered,  and  it  appeared  there,  as  it 
has  appeared  in  all  later  revisions,  in  its  present  form.  The  section  in 
its  present  form  increases  the  punishment,  but  in  another  respect  it 
mitigates  the  severity  of  the  law.  Previously  any  person,  except  a 
wife,  however  closely  related  to  the  criminal,  exposed  himself  to 
punishment  as  an  accessory  after  the  fact  by  knowingly  harboring 
him.  The  section  in  its  present  form  exempts  from  its  operation  the 
husband  or  wife  of  the  principal  offender  and  certain  others  nearly 
related  to  him.  It  also  expresses,  what  was  probably  before  implied, 
that  the  guilt  is  incurred  only  when  there  is  an  intent  to  shield  the 
principal  offender  from  the  law.  These  are  the  only  alterations 
worthy  of  note  which  are  apparent.  Now  the  question  is  whether,  by 
reason  of  these  alterations,  the  word  "knowingly"  has  acquired  a 
different  meaning  from  what  it  previously  had.  It  seems  to  us  that 
we  must  assume  that  the  old  word  has  the  old  meaning  until  it  is 
clearly  apparent  that  it  was  meant  to  have  another.  We  do  not  find 
any  sufficient  indication  that  a  different  meaning  was  intended.  The 
Legislature  has  been  very  explicit  in  the  changes  above  noted,  and 
we  cannot  suppose,  if  so  essential  a  change  in  the  character  of  the 
offense  as  that  which  the  Attorney  General  contends  for  had  been  in- 


286  COMBINATIONS    OF   PERSONS   IN    CRIME.  (Ch.   7 

tended,  that  the  Legislature  would  have  left  it  so  completely  to  in- 
ference or  conjecture.  We  think,  therefore,  that  the  indictment  is 
bad,  in  that  it  does  not  allege  with  the  certainty  required  by  the  rules 
of  criminal  pleading  the  offense  which,  as  we  construe  the  statute, 
was  intended  to  be  punished  by  it. 

Exceptions  sustained,  and  indictment  quashed.1 


REGINA  v.  BUTTERFIELD. 

(Yorkshire  Assizes,  1843.     1  Cox,  C.  C.  39.) 

The  prisoner  was  indicted  as  an  accessory  after  the  fact.  The  in- 
dictment stated  that  at  a  general  sessions  of  Oyer  and  Terminer, 
etc.,  holden,  etc.,  on  the  12th  July,  in  the  seventh  year,  etc.,  before, 
etc.,  it  was  presented  that  Thomas  Butterfield,  then  late  of,  etc.,  and 
Patrick  Burke,  then  late  of,  etc.  (it  then  sets  out  the  former  indict- 
ment against  Burke  and  Butterfield,  for  a  robbery  of  a  £100  note), 
upon  which  said  indictment  the  said  T.  Butterfield  was,  at  the  gen- 
eral sessions,  etc.,  aforesaid,  found  not  guilty,  etc.,  and  the  said 
Patrick  Burke  was  duly  convicted  and  found  guilty  of  the  felony 
and  robbery  aforesaid,  as  by  the  said  record  thereof  more  fully  and 
at  large  appears.  And  the  jurors  aforesaid,  etc.,  that  the  said  Thomas 
Butterfield,  well  knowing  the  said  Patrick  Burke  to  have  done  and 
committed  the  robbery  aforesaid,  after  the  same  was  committed,  to 
wit,  on,  etc.,  at,  etc.,  him,  the  said  Patrick  Burke,  did  feloniously  re- 
ceive, harbor,  maintain,  relieve,  aid,  comfort,  and  assist,  contrary  to 
the  form  of  the  statute,  etc.,  and  against  the  peace,  etc. 

The  prisoner  had  been  indicted,  together  with  Burke,  for  a  robbery 
of  the  note  from  a  person  of  the  name  of  Turner;  and  it  appeared 
that,  shortly  after  the  robbery  was  committed,  Butterfield  applied  to 
his  landlady  to  change  the  note,  but  did  not  succeed,  and  that  Burke 
then  went  to  a  shop  to  purchase  some  articles,  for  the  payment  of 
which  he  tendered  the  note,  and  received  a  large  part  of  it  in  change, 
and  that  during  the  time  he  was  in  the  shop  Butterfield  was  wait- 
ing outride.2 

Bliss  then  submitted  that  the  evidence  did  not  support  the  indict- 
ment. The  prisoner  is  not  charged  with  being  an  accessory  after 
tin-  fact  under  the  statute  which  makes  receiving  stolen  goods  a 
felony,  but  at  common  law.  He  is  charged  with  feloniously  "re- 
ceiving, harboring,  maintaining,  relieving,  aiding,  comforting,  and 
assisting  Burke";  hut  that  is  not  at  all  maintained  by  showing  any- 
thing done  with   the  stolen  property.     Harboring,  etc.,  means  doing 

l  In   State  v.   Miller,   182   MO.  870,  83    S.  W.  867  (1904),  it  wns  held  under  a 
similar  statute  thai  the  burden  of  proving  that  the  defendant  is  within  the 
ited  persons  is  on  bun. 
-  Part  of  tins  case  relating  to  another  point  is  omitted. 


See.  4)  ACCESSORY   AFTER   THE    FACT.  2S7 

something  to  enable  the  prisoner  to  escape.  If  it  had  meant  assist- 
ing him  in  making  away  with  the  stolen  property,  the  statute  would 
have  been  useless;  for  at  common  law,  to  make  a  man  an  accessory 
after  the  fact,  he  must  have  given  the  felon  some  personal  assistance. 
"An  accessory  after  the  fact  is  one  who  knowing  a  felony  to  have 
been  committed  by  another,  receives,  relieves,  comforts,  or  assists  the 
felon."  1  Hale,  618;  Archbold's  Crim.  Law  (7th  Ed.)  8.  "With  re- 
gard to  the  acts  which  will  render  a  man  guilty  as  an  accessory  after 
the  fact,  it  is  laid  down  that  generally  any  assistance  whatever  given 
to  a  person  known  to  be  a  felon,  in  order  to  hinder  his  being  appre- 
hended or  tried,  or  suffering  the  punishment  to  which  he  is  condemned, 
is  a  sufficient  receipt  for  this  purpose,  as  where  a  person  assists  him 
with  a  horse  to  ride  away  with,  or  with  money  or  victuals  to  sup- 
port him  in  his  escape,  or  where  any  one  harbors  and  conceals  in 
his  house  a  felon  under  pursuit,  in  consequence  of  which  his  pursuers 
cannot  find  him ;  much  more,  where  the  party  harbors  a  felon,  and 
the  pursuers  dare  not  take  him."  Hawk.  P.  C.  p.  2,  c.  29,  §  26 ;  Ros- 
coe  on  Cr.  Ev.  208. 

Wilkins  and  Pickering,  contra.  Quite  enough  has  been  proved  to 
leave  this  case  for  a  jury  to  decide.  There  can  be  no  doubt  that 
Butterfield  was  outside  the  shop  with  the  intention  of  aiding  and  as- 
sisting Burke  in  getting  rid  of  the  note,  and  was  there  with  the 
intention  of  aiding  him  in  his  escape,  and  he  consequently  comes 
within  Lord  Hale's  definition.  It  is  for  the  jury  to  say  whether  he  did 
know  that  a  felony  had  been  committed,  and  was  there  to  aid  and  assist. 
The  statute  has  made  no  difference.  In  one  sense,  enabling  the  felon 
to  get  rid  of  the  stolen  property  is  a  mode  of  preventing  his  being 
apprehended  and  tried,  and  is  a  kind  of  personal  assistance ;  but 
the  true  definition  is,  "any  means  by  which  a  party,  knowing  a  felony 
to  have  been  committed,  enables  the  felon  to  obtain  the  fruits  of  that 
felony."    If  so,  we  come  within  that  definition. 

Bliss,  in  reply.  My  complaint  is  that  we  are  charged  with  re- 
ceiving and  harboring  the  felon,  but  the  proof  is  of  receiving  the 
goods.  That  cannot  come  within  the  words  "comfort  and  assistance." 
There  is  no  evidence  of  any  personal  act  of  receiving,  comforting, 
or  assisting  him,  nor  any  evidence  which,  at  common  law,  would 
constitute  the  prisoner  an  accessory  after  the  fact. 

Maule,  J  I  think  there  is  evidence  of  comforting  and  assist- 
ing which  would  make  the  prisoner  an  accessory  after  the  fact.  If 
a  man  stole  a  horse,  and  another  assisted  him  in  coloring  and  dis- 
guising him,  so  that  he  could  not  be  known  again,  that  would  make 
him  an  accessory.  Here  the  prisoner  assists  the  party  who  has  stolen 
the  goods  to  get  rid  of  them,  and  thus  evade  the  justice  of  the  country. 

Maule,  J.  (to  the  jury).  The  question  is  whether  the  pris- 
oner gave  assistance,  comfort,  and  aid  to  Burke,  knowing  he  had 
committed  this  robbery?  The  evidence  is  that  they  were  found 
in  Gally's  shop,  very  earnest  to  get  change,  and  before  that,  on  the 


2S8  COMBINATIONS    OF    PERSONS    IN    CRIME.  (Ch.   7 

same  day,  Butterfield  had  applied  to  the  landlady  for  change.  Now, 
supposing  that  Butterfield  had  known  this  was  a  robbery,  and  was 
assisting  Burke  in  getting  money,  and  thus  suppressing  the  important 
evidence  of  the  possession  of  the  note,  I  think  that  there  was  as- 
sistance within  the  meaning  of  the  statute.  If  you  are  convinced  that 
the  prisoner  knew  that  this  money  was  a  part  of  the  proceeds  of  the 
robbery,  and  that  he  went  with  Burke  to  enable  him  to  effect  his 
object  in  getting  rid  of  the  money,  then  you  must  find  him  guilty. 
If  he  did  not  know  that  Burke  was  guilty  of  this  robbery,  or  that 
this  bank  note  was  part  of  it,  you  ought  to  acquit  him. 
The  prisoner  was  found  guilty.2 


SECTION  5.— PRINCIPAL  AND  AGENT. 




COMMONWEALTH  v.  STEVENS. 

/  (Supreme  Judicial  Court  of  Massachusetts,  1892.    155  Mass.  291,  29  N.  E.  508.) 

Knowltoni,    J.3      The  only    other    exceptions    argued    relate    to 
"'  vf'  ('the   refusal  of  the  courT~to  give  the  defendant's  third  request -for 
instructions  to  the  jury,  and  to  the  instructions  given.     The  instruc- 
tions given  were  as  follows:    "If  you  are  satisfied  beyond  a  reason- 
able doubt  that  the   defendant   stood   by   and   saw   this   sale  to   the 
minor,  and  assented  to  it,  he  is  liable  for  the  sale.     If  the  defendant 
used  proper  care  in  the  selection  of  his  clerks,  and  used  proper  pre- 
cautions by  instructions  to  and  supervision  of  his  clerks,  he  was  not 
bound  to  personally  scrutinize  the  person  of  every  customer  who  ap- 
plied for  liquor.     If  he  does  see  the  customers,  and  any  of  them  are 
minors,  and  he  stands  by,  knowing  that  a  sale  is  made  by  a  clerk  to 
a  minor,  and  he  does  not  prevent  it,  he  is  liable.     The  defendant  is 
not  liable  if  the  sale  by  the  clerk  was  an  honest  mistake  on  the  part 
of  the  clerk  as  to  the  age  of  the  person  to  whom  he  sold,  provided  the 
jury  are  satisfied  that  the  master  sincerely  and  honestly  intended  that 
his  instructions  should  be  obeyed  in  good  faith,  and  that  he  was  not 
or  careless  in  the  selection  of  his  clerks,  or  in  the  regula- 
and  precautions  which  he  prescribed   for  their  guidance      The 
evidence  as  to  the  other  sales  made,  and  the  business  carried  on  at 
tore,  is  only  competent  upon  the  question  of  the  reasonableness 

impare  Blakely  v.  State,  24  Tex.  App.  616,  7  8.  W.  -:'„l,5Am.  St.  Rep.  912 
(1888);    State  v.  Jett,  69  Kan.  788,  77  Pac.  546  (1904). 

"The  facta  proved  are  (If  believed)  Buffldenl  to  make  the  prisoner.  Stear, 
liable  aa  an  accessory,  tf  be  employed  another  person  n>  receive,  relieve,  com* 
fort,  and  assist  the  principal  felons,  be  did  it  himself."  Ourney,  B.,  in  Rex  v. 
JnrvlK.  2  MOO.  ft  EL  40  (1887). 

»  Part  of  tins  case,  relating  to  a  question  of  evidence,  is  omitted. 


Sec.  5)  PRINCIPAL   AND   AGENT.  289 

of  the  precautions  taken  by  the  defendant  to  prevent  sales  to  minors, 
and  whether  the  method  of  determining  the  age  of  a  customer  was  a 
reasonable  one,  or  whether  it  indicated  bad  faith  or  negligence  on 
the  part  of  the  defendant  in  the  mode  of  conducting  his  business." 
The  request  was  as  follows:  "If  the  sale  and  attendant  circumstances 
found  by  the  jury  are  consistent  with  the  theory  that  defendant 
really  intended  that  no  sale  should  be  made  to  minors,  but  was 
merely  negligent,  then  the  jury  must  acquit."  Tlie^que&tierr-before 
the  jury  was,  not  whether  the  defendant  intended  that  no  sale  should 
be  made  to  minors,  but  whether  the  sale  which  was  made  was  his  act. 
If  he  made  the  sale,  and  intended  to  make  it,  it  would  be  no  defense 
that  he  was  mistaken  in  supposing  that  the  buyer  was  not  a  minor. 
It  is  to  be  remembered  that  the  statute  forbidding  the  unlicensed 
sale  of  intoxicating  liquor,  like  the  laws  regulating  the  sale  of  milk, 
and  many  other  similar  statutes,  punishes  the  unlawful  act,  and  on 
grounds  of  public  policy  holds  the  defendant  responsible  for  knowl- 
edge of  the  nature  of  his  act;  so  that  it  is  possible  in  a  supposable 
case  for  one  to  be  guilty  of  a  technical  violation  of  the  law  without 
culpability,  and  to  find  it  necessary  for  his  protection  to  appeal 
to  the  sense  of  justice  of  those  who  are  intrusted  with  the  administra- 
tion of  the  law.  Commonwealth  v.  Uhrig,  138  Mass.  492.  If  the 
sale  was  made  by  his  clerk,  and  if  it  was  authorized  by  him  by  special 
authority  in  the  particular  case,  or  by  a  general  authority  which  in- 
cluded it,  it  would  be  no  defense  to  show  that  he  did  not  intend  to 
make  sales  to  minors,  but  was  negligent  in  not  taking  measures  to 
prevent  them.  Through  a  long  line  of  cases  the  test  of  the  master's 
liability  for  an  act  of  this  kind  done  by  his  servant  has  been  whether 
it  was  done  by  his  authority.  Commonwealth  v.  Putnam,  4  Gray,  16 ; 
Commonwealth  v.-  Waclieffltorf ,  141  Mass.  270,  4  N.  E.  817;  Com- 
monwealth v.  Briant,  142  Mass.  463,  8  N.  E.  338,  56  Am.  Rep.  707; 
Commonwealth  v.  Stevenson,  142  Mass.  466,  8  N.  E-  341 ;  Common- 
wealth v.  Hayes,  145  Mass.  289,  14  N.  E.  151;  Commonwealth  v. 
Rooks,  150  Mass.  59,  22  N.  E.  436. 

The_crjminal  liability  of  a  master  for  the  act  of  his  servants  does 
not  extend  so  far  as  his  civil  liability,  inasmuch  as  he  cannot  be  held 
criminally  for  what  the  servant  does  contrary  to  his  orders,  and  with- 
out any  authority,  express  or  implied,  merely  because  it  is  in  the  course 
of  his  business  and  within  the  scope  of  the  servant's  employment ; 
but  he  would  be  liable  civilly  for  a  tort  of  this  kind.  Roberge  v. 
Burnham,  124  Mass.  277;  George  v.  Gobey,  128  Mass.  2S9,  35  Am. 
Rep.  376.  But  if  the  act  is  the  master's,  because  done  by  the  servant 
within  his  authority,  and  especially  if  it  is  an  act  which  is  made 
punishable  even  when  done  in  ignorance  of  its  punishable  quality, 
the  statute  applies  to  the  master  as  well  as  to  the  servant. 

The  defendant  was  not  aggrieved  by  the  instructions  given.  In 
one  part  of  the  case  the  jury  were  told  that  the  proof  must  be  be- 
yond a  reasonable  doubt,  and  if  the  defendant  had  desired  thai 
Mik.Cr.L—  19 


290  COMBINATIONS   OF   PERSONS   IN    CRIME.  (Ch.   7 

their  attention  should  be  further  directed  to  the  degree  of  proof 
upon  other  points  he  should  have  asked  for  an  instruction  in  regard 
to  it. 

A  part  of  the  charge  was  directed  to  evidence  that  the  defend- 
ant stood  by  and  saw  the  sale  made,  and  there  was  no  error  in  it. 
The  instructions  which  are  chiefly  criticised  by  the  defendant's  coun- 
sel followed  closely  the  language  of  the  opinion  of  this  court  at 
the  former  hearing  of  this  case,  reported  in  153  Mass.  421,  26  N. 
E.  992,  and  the  rights  of  the  defendant  were  fully  protected  by  them. 

Exceptions  overruled.2 

2  See,  also,  for  doctrine  that  the  principal  is  not  responsible  for  the  acts  of 
the  agent  unless  done  with  his  consent  or  acquiescence.  State  v.  Smith,  10  R.  I. 
258  (1872);  Anderson  v.  State.  22  Ohio  St.  305  (1S72) ;  Reg.  v.  Holbrook,  4 
Q.  B.  Div.  42  (187S) ;  State  v.  Baker,  71  Mo.  475  (1SS0) ;  People  v.  Parks,  49 
Mich.  333,  13  N.  W.  618  (18S2) ;  Commomvealth  v.  Johnston,  2  Pa.  Super.  Ct. 
317  (1896) ;    Rosenbaum  v.  State,  24  Ind.  App.  510,  57  N.  E.  156  (1900). 

Contra,  under  particular  statutes:  McGuire  v.  State,  37  Miss.  369  (1859) ; 
Noecker  v.  People.  91  111.  494  (1879) ;  Warren  v.  State,  38  Ark.  641  (18^2) ; 
People  v.  Roby.  52  Mich.  577,  18  N.  W.  365,  50  Am.  Rep.  270  (1884) ;  Loeb  v. 
State,  7.1  Ga.  258  (1885). 

That  the  agent  is  also  liable,  see  State  v.  Bugbee,  22  Vt.  32  (1849) ;  Smith 
v.  Dist,  12  App.  D.  C.  33  (18S7) ;  Witherspoon  v.  State,  39  Tex.  Cr.  R.  65,  44 
S.  W.  164,  1096  (1898);  People  v.  Dunlap,  32  Misc.  Rep.  390,  66  N.  Y. 
Supp.  161  (1900). 


ASSAULT,  BATTERY,  AND   MAYHEM.  291 

CHAPTER  VIII. 
ASSAULT,  BATTERY,  AND   MAYHEM. 


It  seems  that  an  assault  is  an  attempt,  or  offer,  with  force  and 
violence,  to  do  a  corporal  hurt  to  another,  as  by  striking  at  him 
with  or  without  a  weapon,  or  presenting  a  gun  at  him  at  such  a  dis- 
tance to  which  the  gun  will  carry,  or  pointing  a  pitchfork  at  him,, 
standing  within  the  reach  of  it,  or  by  holding  up  one's  fist  at  him,  or 
by  any  other  such  like  act  done  in  an  angry,  threatening  manner ; 
and  from  hence  it  clearly  follows  that  one  charged  with  assault  and: 
battery  may  be  found  guilty  of  the  former  and  yet  acquitted  of  the 
latter.  But  every  battery  includes  an  assault.  Therefore  on  an  in- 
dictment of  assault  and  battery,  in  whfch-Hie  assault  is  ill  laid,  if  the 
defendant  be  found  guilty  of  the  battery,  it  is  sufficient.  Notwith- 
standing the  many  ancient  opinions  to  the  contrary,  it  seems  agreed 
at  this  day  that  no  words  whatever  can  amount  to  an  assault.  It 
seems  that  any  injury  whatsoever,  be  it  never  so  small,  being  actually 
done  to  the  person  of  a  man  in  angry,  revengeful,  rude,  or  insolent 
manner,  as  by  spitting  in  his  face,  or  any  way  touching  him  in  anger, 
or  violently  jostling  him  out  of  the  way,  are  batteries  in  the  eye  of 
the  law.  But  it  is  said  to  be  no  battery  to  lay  one's  hand  gently  on 
another  whom  an  officer  has  a  warrant  to  arrest,  and  tell  the  officer 
that  this  is  the  man  he  wants. — 1  Hawkins,  P.  C.  110. 


TUBERVILLE  v.  SAVAGE. 

(King's  Bench,  1669.    1  Mod.  3.) 

Action  of  assault,  battery  and  wounding.  The  evidence  to  prove 
a  provocation  was,  that  the  plaintiff  put  his  hand  upon  his  sword  and 
said,  "If  it  were  not  assize-time,  T  would  not  take  such  language  from 
you."  The  question  was,  If  that  were  an  assault?  The  Court  agreed 
that  it  was  not;  for  the  declaration  of  the  plaintiff  was,  that  he  would 
not  assault  him,  the  judges  being  in  town;  and  the  intention  as  well 
as  the  act  makes  an  assault.  Therefore,  if  one  strike  another  upon 
the  hand,  or  arm,  or  breast  in  discourse,  it  is  no  assault,  there  being 
no  intention  to  assault ;  but  if  one,  intending  to  assault,  strike  at  an- 
other and  miss  him,  this  is  an  assault:  so  if  he  hold  up  his  hand 
against  another  in  a  threatening  manner  and  say  nothing,  it  is  an  as- 
sault.    In  the  principal  case  the  plaintiff  had  judgment.1 

i  Accord:  Commonwealth  v.  Eyre,  1  Serg.  &  R.  (Pa.)  347  (1815). 


292  ASSAULT,  BATTERY,  AND   MAYHEM.  (Ch.    8 


UNITED  STATES  v.  MYERS. 

(Circuit  Court  of  the  United  States,  District  of  Columbia,  1S06.     1  Cranch,  C. 
C.  310,  Fed.  Cas.  No.  15,845.) 

Presentment  for  an  assault  on  Jane  McGrath.  The  evidence  was 
that  the  defendant  doubled  his  fist  and  ran  it  towards  the  witness, 
saying,  "If  you  say  so  again  I  will  knock  you  down." 

Mr.  Key,  for  the  defendant,  contended  that  it  was  not  an  assault. 
The  words  explain  the  act,  and  show  the  intention  not  to  be  to  com- 
mit a  battery.  It  was  like  the  case  of  a  man  putting  his  hand  on  his 
sword,  and  saying,  "If  it  were  not  term  time  or  assizes',  I  would  kill 
you,"  etc.,  and  he  moved  the  court  to  instruct  the  jury  that  it  was  no 
assault. 

Mr.  Jones,  attorney  for  the  United  States,  contra. 

The  Court  (nem.  con.)  refusing  to  give  the  instruction. 

Verdict — guilty.     Fined  five  dollars.1 


REGINA  v.  MARCH. 

(Worcester  Assizes,  1844.    1  Car.  &  K.  496.) 

It  appeared  that  the  defendant,  March,  resided  in  High  street, 
Bordesley,  near  Birmingham,  and  dispensed  medicines,  and  also  prac- 
ticed as  a  surgeon,  the  other  defendant  living  with  him,  and  that 
Anne  Milne,  who  came  to  the  defendant  March's  house  for  her  ac- 
couchment,  was  on  Saturday,  the  ISth  of  May,  18-14,  delivered  of  a 
male  child,  which  the  defendants  told  her  was  to  be  taken  to  a  nursery 
or  institution  to  be  brought  up.  It  further  appeared  that  at  about 
2  o'clock  in  the  afternoon  on  Monday,  the  20th  of  May,  1814,  the 
defendants  left  their  home  with  the  child,  and  were  seen  by  a  witness 
named  Dingley,  at  between  2  and  3  o'clock  on  the  same  afternoon, 
passing  along  a  footpath  leading  from  the  Alcester  turnpike  road,  by 
the  side  of  Moseley  Park,  to  Edgbaston  Lane,  and  that,  soon  after 
that,  this  witness  saw  hung  from  the  paling  at  the  side  of  the  foot- 
path a  coarse  linen  bag,  about  2  feet  deep  and  15  inches  wide,  which 
hung  upon  one  of  the  pales  by  two  holes  made  in  the  upper  part  of 
the  bag.  This  bag  contained  a  child  and  some  pieces  of  old  cloth, 
which  had  formed  part  of  a  coat.  It  was  proved  by  a  superintendent 
of  police,  named  Griffiths,  that  lie  took  the  defendant  March  into  cus- 
tody on  the  same  afternoon,  when  the  defendant  March  stated  that 
hild  to  a  woman  named  Vincent,  who  lived  in  Red  Lion 

yard  and  wa  ■   a  midwife,  and  that   she  was  to  take  it  to  be  dry-nursed 

to  some  hospital ;   bul  the  superintendent  of  police  staled  that  no  such 

i  Accord:  Keefe  v.  State,  19  Ark.  L90  (1857);  State  v.  Home,  02  N.  C.  805, 
58  Am.  Rep.  442  (1885). 


ASSAULT,  BATTERY,  AND  MAYHEM.  2!J.°> 

person  could  be  found.  Evidence  was  also  given  to  show,,  that  the 
bag  in  which  the  child  was  belonged  to  the  defendant  March,  and 
that  pieces  of  cloth  corresponding  with  those  found  with  the  child 
were  found  in  his  house.  It  was  further  proved  by  Mr.  Kimberly,  a 
surgeon,  that  in  his  opinion  the  putting  a  child  of  so  tender  age  into 
a  Bag,  an<l  then  hanging  the  bag  on  pales,  would  be  likely  to  cause  the 
death  of  the  child. 

Huddleston,  for  the  defendants.  With  respect  to  the  third  and 
fourth  counts,1  I  submit  that,  if  there  was  consent  to  what  was  done, 
there  could  be  no  assault.  As  the  child  was  of  so  tender  age,  the 
consent  of  its  mother  might  be  necessary;  but  here  the  defendants 
had  possession  of  the  child  by  the  consent  of  the  mother. 

Tindal,  C.  J.  The  mother  gave  that  consent  on  the  false  pretext 
that  the  child  was  to  be  taken  to  some  institution;  and,  as  that  pre- 
text was  false,  it  was  really  no  consent. 

Keating,  for  the  prosecution.  I  do  not  understand  your  lordship 
to  decide  that,  if  the  mother  had  consented  to  all  that  was  done,  there 
would  have  been  no  assault  on  the  child. 

Tindal,  C.  J.  I  have  not  said  that.  All  that  I  have  said  is  that 
there  is  no  evidence  of  any  consent  on  the  part  of  the  mother. 

Huddleston  addressed  the  jury  for  the  defendants,  and  argued  that 
there  was  no  sufficient  proof  of  any  intention  to  murder,  so  as  to  sup- 
port the  first  and  second  counts. 

Tindal,  C.  J.  (in  summing  up).  The  defendants  are  charged  with 
having  assaulted  this  child,  and  in  the  first  and  second  counts  an  in- 
tent to  murder  is  laid.  I  much  incline  to  think  that  an  intent  to 
murder  cannot  be  fairly  inferred  here;  for,  if  there  had  been  an  in- 
tention in  the  prisoners  to  have  murdered  this  child,  a  very  little  differ- 
ence in  the  mode  of  packing  up  the  bag  would  have  carried  that  in- 
tention into  effect.  With  respect  to  the  third  and  fourth  counts,  there 
is  no  real  difference  in  the  charges  contained  in  them,  and  the  taking 
of  the  child  and  putting  it  into  a  bag  was  an  assault.  The  case,  there- 
fore, resolves  itself  into  this  question:  Whether  the  defendants  are 
the  persons  who  did  take  this  child,  and  put  it  into  the  bag,  and  hang 
it  on  the  palings ;  but  I  think  you  may  acquit  them  on  all  those  counts 
which  charge  an  intent  to  murder. 

The  jury  found  both  the  defendants  guilty  on  the  third  and  fourth 
counts  of  the  indictment,  and  not  guilty  of  the  residue  of  the  charge.2 

i  The  indictment  is  omitted.  The  first  count  was  for  attempt  to  murder ;  the 
third  and  fourth,  for  assault. 

2  Compare  Res.  v.  Mulroy,  3  Crawford  &  Dix,  318  (1S43);  Reg.  v.  Renshaw, 
2  Cox,  C.  C.  285  (1847). 


'-J-L  ASSAULT,  BATTERY,  AND   MAYHEM.  (Ch.    8 


STATE  v.  DANIEL. 

(Supreme  Court  of  North  Carolina,  1904.    136  N.  C.  571,  48  S.  E.  544,  103  Am. 

St  Rep.  970.) 

Walker,  J.1  The  first  instruction  was  that  if  the  defendant  cursed 
the  prosecutor,  Alston,  and  ordered  him  to  come  to  him,  and  Alston 
obeyed  through  fear,  the  defendant  was  guilty  of  an  assault.  Be- 
fore the  prosecutor  reached  the  place  near  the  hog  pen  where  the  de- 
fendant was  standing,  the  latter  had  made  no  threat,  nor  had  he  of- 
fered or  attempted  any  violence  to  the  person  of  the  prosecutor,  nor 
was  there  any  display  or  exhibition  of  force  of  any  kind,  so  far  as  the 
evidence  here  shows.  Jn  this  state  of  the  case  we  are  unable  to  sus- 
tain this  instruction  as  a  correct  statement  of  the  law  of  assault.  "It 
would  seem,"  says  Reade,  J.,  "that  there  ought  to  be  no  difficulty  in 
determining  whether  any  given  state  of  facts  amounts  to  an  assault ; 
but  the  behavior  of  men  towards  each  other  varies  by  such  mere 
shades  that  it  is  sometimes  very  difficult  to  characterize  properly  their 
acts  and  words."  State  v.  Hampton,  63  N.  C.  14.  While  the  law  re- 
lating to  this  crime  would  seem  to  be  simple  and  of  easy  application, 
we  are  often  perplexed  in  our  attempt  to  discriminate  between  what 
is  and  what  is  not  an  assault.  But  in  this  case  we  have  no  such  diffi- 
culty, as  the  law  applicable  to  the  facts  has  been  clearly  stated  and 
well  settled  by  the  decisions  of  this  court. 

An  assault  is  an  intentional  offer  or  attempt  by  violence  to  do  any 
f  injury  to  the  person  of  another.  There  must  be  an  offer  or  attempt. 
Mere  words,  however  insulting  or  abusive,  will  not  constitute  an  as- 
sault ;  nor  will  a  mere  threat  or  violence  menaced,  as  distinguished 
from  violence  begun  to  be  executed.  Where  an  unequivocal  pur- 
pose of  violence  is  accompanied  by  any  act  which,  if  not  stopped  or 
diverted,  will  be  followed  by  personal  injury,  the  execution  of  the 
purpose  is  then  begun,  and  there  has  been  a  sufficient  offer  or  attempt. 
State  v.  Davis,  23  N.  C.  125,  35  Am.  Dec.  735 ;  State  v.  Reavis,  113 
N.  C.  G77,  18  S.  E.  388.  This  principle,  as  stated  by  Judge  Gaston 
in  the  first  case  cited,  has  been  adopted  as  a  correct  exposition  of  the 
law  of  assault,  not  only  in  subsequent  decisions  of  this  court,  but  in 
numerous  cases  decided  in  the  courts  of  the  other  states.  There  must, 
lure,  be  not  only  threatening  words  or  violence  menaced,  but  the 
defendant  must  have  committed  some  act  in  execution  of  his  purpose. 
It  is  not  necessary  at  all  that  his  words  should  be  accompanied  or 
followed  by  an  actual  battery,  for  a  mere  assault  excludes  the  idea 
of  a  battery;  but  he  must  either  offer  to  do  violence,  as  by  drawing 
hack  his  fist  or  raising  a  stick,  or  attempt  to  do  it,  as  by  aiming  a 
blow  at  another,  which  does  no1  take  effect  because  it  is  warded  off 
third  person,  or  by  shooting  at  another  and  missing  the  mark, 

all  of  which  is  clearly  and  fully  explained  by  i'earson,  C.  J.,  in  State 
i  Part  of  this  ca  \e  is  omit  ted. 


ASSAULT,  BATTERY,  AND   MAYHEM.  295 

v.  Myerficld,  61  N.  C.  108.  It  is  not  necessary,  in  view  of  the  facts 
of  this  case,  that  we  should  stop  here  to  state  how  these  acts  can  be 
qualified  by  words  or  otherwise,  and  with  what  restrictions  or  excep- 
tions, so  as  to  relieve  the  accused  of  any  guilt.  The  law  in  this  respect 
is  also  discussed  in  Myerfield's  Case,  supra. 

The  principle  is  well  established  that  not  only  is  a  person  who  of- 
fers or  attempts  by  violence  to  injure  the  person  of  another  guilty  of 
an  assault,  but  no  one  by  the  show  of  violence  has  the  right  to  put 
another  in  fear  and  thereby  force  him  to  leave  a  place  where  he  has 
the  right  to  be.  State  v.  Hampton,  63  N.  C.  13 ;  State  v.  Church, 
63  N.  C.  15 ;  State  v.  Rawles,  65  N.  C.  334 ;  State  v.  Shipman,  81 
N.  C.  513;  State  v.  Martin,  85  N.  C.  508,  39  Am.  Rep.  711;  State 
v.  Jeffreys,  117  N.  C.  743,  23  S.  E.  175.  It  is  not  always  necessary, 
to  constitute  an  assault,  that  the  person  whose  conduct  is  in  question 
should  have  the  present  capacity  to  inflict  injury;  for  if  by  threats 
or  a  menace  of  violence  which  he  attempts  to  execute,  or  by  threats 
and  a  display  of  force,  he  causes  another  to  reasonably  apprehend 
imminent  danger,  and  thereby  forces  him  to  do  otherwise  than  he 
would  have  done,  or  to  abandon  any  lawful  purpose  or  pursuit,  he 
commits  an  assault.  It  is  the  apparently  imminent  danger  that  is 
threatened,  rather  than  the  present  ability  to  inflict  injury,  which  dis- 
tinguishes violence  menaced  from  an  assault.  State  v.  Jeffries  and 
State  v.  Martin,  supra.  It  is  sufficient  if  the  aggressor,  by  his  con- 
duct, lead  another  to  suppose  that  he  will  do  that  which  he  apparently 
attempts  to  do.  1  Archb.  Cr.  Pr.,  PL  &  Ev.  (8th  Ed.  by  Pomeroy) 
907,  908. 

If,  therefore,  the  defendant  had  threatened  the  prosecutor  with 
violence  and  the  threat  had  been  accompanied  by  any  show  of  force, 
such  as  drawing  a  sword  or  knife,  or  if  he  had  advanced  towards  the 
prosecutor  in  a  menacing  attitude,  even  without  any  weapon,  and  had 
been  stopped  before  he  delivered  a  blow,  and  the  prosecutor  had  been 
put  in  fear  and  compelled  to  leave  the  place  where  he  had  the  lawful 
right  to  be,  the  assault  would  have  been  complete,  although  he  was 
not  at  the  time  in  striking  distance.  But  in  this  case,  so  far  as  the 
facts  recited  in  the  first  instruction  should  be  considered,  there  was  not 
even  violence  menaced,  but,  at  most,  only  offensive  and  profane  words. 
There  must  be  an  overt  act,  or  an  attempt,  or  the  unequivocal  appear- 
ance of  an  attempt,  with  force  and  violence  to  do  a  corporal  injury — 
such  an  act  as  will  convey  to  the  mind  of  the  other  person  a  well- 
grounded  apprehension  of  personal  injury.  B_are_words  will  never  do; 
for,  however  violent  they  may  be,  they  cannot  take  the  place  of  that 
force  which  is  necessary  to  complete  the  offense.  They  are  often  the 
exhibition  of  harmless  passion,  and  do  not  by  themselves  constitute  a 
breach  of  the  peace,  as  the  law  supposes  that  against  mere  rudeness 
of  language  ordinary  firmness  will  be  a  sufficient  protection.  State 
v.  Covington,  70  N.  C.  71. 


296  ASSAULT,  BATTERY,  AND  MAYHEM.  (Ch.    8 

It  may  be,  as  suggested,  that  the  positions  of  the  two  parties  were 
relatively  unequal,  as  the  defendant  belonged  to  a  strong  and  dominant 
and  the  prosecutor  to  a  weak  and  servile  race,  and  it  may  further  be 
that  the  words  of  the  prosecutor  as  he  approached  the  defendant  were 
the  cringing  utterances  of  servility  and  showed  great  humility  and 
submissiveness,  because  of  the  lowliness  of  his  station  in  life  as  com- 
pared with  that  of  the  defendant,  and  therefore  he  abjectly  obeyed  the 
latter's  command  to  come  to  him.  All  this  may  be  true;  and  while  it 
reflects  little  credit  upon  the  defendant,  whose  conduct  as  it  now  ap- 
pears to  us  cannot  be  too  severely  condemned,  it  cannot  have  the  effect 
of  reversing  a  long-established  principle  of  the  law  to  which  we  must 
adhere;  it  being  founded  upon  reason  and  justice  and  treated  by  the 
courts  and  the  text-writers  as  one  of  universal  application.  The  case 
of  State  v.  Milsaps,  82  N.  C.  549,  illustrates  the  extent  to  which  the 
principle  has  been  carried.  In  that  case  it  appeared  that  the  defendant* 
addressed  grossly  insulting  language  to  the  prosecutor,  and  then  pick- 
ed up  a  stone  about  12  feet  from  the  prosecutor,  but  did  not  offer  to 
throw  it;  and  the  court  held  that  it  was  not  an  assault,  but  only  vio- 
lence menaced,  and  it  was  therefore  error  for  the  lower  court  to 
charge  the  jury  that  if  the  acts  and  words  of  the  defendant  were  such 
as  to  put  a  man  of  ordinary  firmness  in  fear  of  immediate  danger, 
and  the  defendant  had  the  ability  at  the  time  to  inflict  an  injury,  he 
would  be  guilty.  Substantially  to  the  same  effect  is  State  v.  Mooney, 
61  N.  C.  434.  See,  also,  Johnson  v.  State,  43  Tex.  576.  In  neither 
of  those  cases,  though,  was  the  prosecutor  deterred  from  doing  what 
he  had  a  right  to  do,  or  in  any  respect  unlawfully  restrained  in  his 
action  or  conduct  or  constrained  to  act  contrary  to  his  wishes. 

New  trial. 


CHAPMAN  v.   STATE. 
(Supreme  Court  of  Alabama,  1884.    78  Ala.  463,  56  Am.  Rep.  12.) 

Somerville,  J.  The  defendant  was  indicted  for  an  assault  and 
battery  upon  the  person  of  one  McLeod,  and  was  convicted  of  a  mere 
assault. 

It  may  be  that,  if  the  indictment  had  been  for  robbery,  the  facts  in 
evidence  would  have  sustained  the  allegation  of  an  assault,  which,  in 
cases  of  that  nature,  is  often  merely  constructive;  for  every  attempt 
at  robbery,  or  to  commit  rape,  or  to  do  other  like  personal  injury, 
involves  within  it  the  idea  of  an  assault,  either  actual  or  constructive. 

The  presenl  conviction,  however,  can  be  sustained  only  on  the  theory 
that  it  was  an  assault  for  the  defendant  to  present  or  aim  an  unloaded 
gun  at  the  person  i  harged  to  be  assaulted,  in  such  a  menacing  manner 
as  to  terrify  him,  and  within  such  distance  as  to  have  been  dangerous, 
had  the  weapon  been  loaded  and  discharged.  On  this  question  the 
Iged  cases,  both  in  this  country  and  in  England,  are  not  agreed, 


Uc 


ASSAULT,  BATTERY,  AND   MAYHEM.  L"J? 

and  a  like  difference  of  opinion  prevails  among  the  most  learned  com- 
mentators on  the  law.  We  have  had  occasion  to  examine  these  au- 
thorities with  some  care  on  more  occasions  than  the  present;  and  we 
are  of  the  opinion  that  the  better  view  is  that  presenting  an  unloaded 
gun  at  one  who  supposes  it  to  be  loaded,  although  within  the  distance 
the  gun  would  carry  if  loaded,  is  not,  without  more,  such  an  assault 
as  can  be  punished  criminally,  although  it  may  sustain  a  civil  suit  for 
damages.  The  conflict  of  authorities  on  the  subject  is  greatly  at- 
tributable to  a  failure  to  observe  the  distinction  between  these  two' 
classes  of  cases.  A  civil  action  would  rest  upon  the  invasion  of  a  per- 
son's "right  to  live  in  society  without  being  put  in  fear  of  personal 
harm,"  and  can  often  be  sustained  by  proof  of  a  negligent  act  resiilt- 
ing  in  unintentional  injury.  Peterson  v.  Haffner,  59  Ind.  130,  26  Am. 
Rep.  81 ;  Cooley  on  Torts,  161.  An  indictment  for  the  same  act  could 
be  sustained  only  upon  satisfactory  proof  of  criminal  intention  to  do 
personal  harm  to  another  by  violence.  State  v.  Davis,  23  N.  C.  125, 
35  Am.  Dec.  735.  The  approved  definition  of  an  assault  involves  the 
idea  of  an  inchoate  violence  to  the  person  of  another,  with  the  present 
means  of  carrying  the  intent  into  effect ;  2  Greenl.  Ev.  §  82 ;  Roscoe's 
Cr.  Ev.  (7th  Ed.)  296;  People  v.  Lilley,  43  Mich.  521,  5  N.  W.  982. 
Most  of  our  decisions  recognize  the  old  view  of  the  text-books  that 
there  can  be  no  criminal  assault  without  a  present  intention,  as  well 
as  present  ability,  of  using  some  violence  against  the  person  of  an- 
other; 1  Russ.  Cr.  (9th  Ed.)  1019;  State  v.  Blackwell,  9  Ala.  79; 
Tarver  v.  State,  43  Ala.  354.  In  Lawson  v.  State,  30  Ala.  14,  it  was 
said  that,  "to  constitute  an  assault,  there  must  be  the  commencement 
of  an  act  which,  if  not  prevented,  would  produce  a  battery."  The 
case  of  Balkum  v.  State,  40  Ala.  671,  which  was  decided  by  a  divided 
court,  probably  does  not  harmonize  with  the  foregoing  decisions. 

It  is  true  that  some  of  the  modern  text-writers  define  an  assault 
as  an  apparent  attempt  by  violence  to  do  corporal  hurt  to  another, 
thus  ignoring  entirely  all  question  of  any  criminal  intent  on  the  part 
of  the  perpetrator.  1  Whart.  Cr.  Ev.  §  603 ;  2  Bish.  Cr.  Law,  §  32. 
The  true  test  cannot  be  the  mere  tendency  of  an  act  to  produce  a 
breach  of  the  peace ;  for  opprobrious  language  has  this  tendency,  and. 
_jio^words,  however  violent  or  abusive,  can  at  common  law  constitute 
_an  assault.  It  is  unquestionably  true  that  an  apparent  attemptTto  do 
corporal  injury  to  another  may  often  justify  the  latter  in  promptly 
resorting  to  measures  of  self-defense.  But  this  is  not  because  such 
apparent  attempt  is  itself  a  breach  of  the  peace,  for  it  may  be  an  act 
entirely  innocent.  It  is  rather  because  the  person  who  supposes  him- 
self to  be  assaulted  has  a  right  to  act  upon  appearances,  where  they 
create  reasonable  grounds  from  which  to  apprehend  imminent  peril. 
There  can  be  no  difference,  in  reason,  between  presenting  an  un- 
loaded gun  at  an  antagonist  in  an  affray  and  presenting  a  walking 
cane  as  if  to  shoot,  provided  he  honestly  believes,  and  from  the  cir- 
cumstances has  reasonable  ground   to  believe,  that  the  cane  was  a 


298  ASSAULT,  BATTERY,  AND   MAYHEM.  (Cll.    8 

loaded  gun.  Each  act  is  a  mere  menace,  the  one  equally  with  the 
other;  and  mere  menaces,  whether  by  words  or  acts,  without  intent 
or  ability  to  injure,  are  not  punishable  crimes,  although  they  may  often 
constitute  sufficient  ground  for  a  civil  action  for  damages.  The  test, 
moreover,  in  criminal  cases,  cannot  be  the  mere  fact  of  unlawfully 
putting  one  in  fear,  or  creating  alarm  in  the  mind;  for  one  may  ob- 
viously be  assaulted,  although  in  complete  ignorance  of  the  fact,  and, 
therefore,  entirely  free  from  alarm.  People  v.  Lilley,  43  Mich.  525, 
5  X.  W.  9S2,  1  Crim.  Law.  Mag.  605.  And  one  may  be  put  in  fear 
under  pretense  of  begging,  as  in  Taplin's  Case,  occurring  during  the 
riots  in  London,  decided  in  1780,  and  reported  in  2  East,  P.  C.  712, 
and  cited  in  many  of  the  other  old  authorities.  These  views  are  sus- 
tained by  the  spirit  of  our  own  adjudged  cases,  cited  above,  as  well 
as  by  the  following  authorities,  which  are  directly  in  point :  2  Greenl. 
Cr.  Law  Rep.  pp.  271-275,  and  note,  where  all  the  cases  are  fully 
reviewed;  2  Addison  on  Torts  (Wood's  Ed.  1881)  pp.  4-7,  §  788, 
note  1;  Roscoe's  Crim.  Ev.  (7th  Ed.)  296;  1  Russell  Cr.  (9th  Ed.) 
1020;  Blake  v.  Barnard,  9  C.  &  P.  626;  Reg.  v.  James,  1  C.  &  P. 
530;  Robinson  v.  State,  31  Tex.  170;  McKay  v.  State,  44  Tex.  43; 
State  v.  Davis,  23  N.  C.  125,  35  Am.  Dec.  735. 

The  opposite  view  is  sustained  by  the  following  authors  and  ad- 
judged cases:  7  Bish.  Cr.  Law  (7th  Ed.)  §  32;  1  Whart.  Cr.  Law 
(9th  Ed.)  §§  603,  182;  Reg.  v.  St.  George,  9  C.  &  P.  483;  Com- 
monwealth v.  White,  110  Mass.  407;  State  v.  Shepard,  10  Iowa, 
126;  State  v.  Smith,  2  Humph.  (Tenn.)  457.  See,  also,  3  Greenl. 
Ev.  (14th  Ed.)  §  59,  note  "b";  1  Arch.  Cr.  Pr.  &  PI.  (Pomeroy's 
Ed.)  907,  282-283;  State  v.  Benedict,  11  Vt.  238,  34  Am.  Dec.  688; 
State  v.  Neely,  74  N.  C.  425,  21  Am.  Rep.  496. 

The  rulings  of  the  court  were  opposed  to  these  views;  and  the 
judgment  must  therefore  be  reversed,  and  the  cause  remanded.1 

i  Accord:  People  v.  Sylva,  143  Cal.  »',2  (1001);  Klein  v.  State.  9  Ind.  App. 
365,  36  N.  B.  763,  53  Am.  St.  Rep.  351  (IN'.KH  ;  state  v.  Soars,  86  Rio.  1(39  (18Sr>) ; 
State  v.  Godfrey,  17  Or.  300.  20  Pac.  625,  11  Am.  St.  Hep.  830  (1889);  McCon- 
Dell  v.  Stale,  25  Tex.  App.  329,  8  S.  W.  275  (1888). 

Contra,  In  addition  to  cases  cited  in  opinion:  People  v.  Morehouse.  53  Hun, 
638,  6  N.  V.  Supp.  703  (18S9) ;  State  v.  Archer,  8  Kan.  App.  737,  54  Pac  927 
(1898). 

"As  shown  above,  the  state's  case  as  to  the  assault  depends  on  the  testimony 
of  the  prosecutrix,  Rosa  Singleton,  wherein  she  states  that  appellant  asked  her 
to  ki88  him,  and  on  her  refusal  he  reached  his  hands  oul  as  If  to  grab  her,  and 
she  jumped  out  of  the  door.  This  may  constitute  an  assault,  under  the  au- 
thorities: that  is.  appellant  evidently  had  the  ability  of  committing  a  battery 
on  prosecutrix,  and  it.  without  her  consent,  he  attempted,  by  the  use  uf  force, 

to  make  her  kiss  him,  and  she  lied  to  prevent  this,  then  Ihere  would  he  an  as- 
sault, ff,  on  the  other  hand,  appellant  reasonably  believed,  under  the  cir- 
cumstances, that   prosecutrix   would  allow  him  to  kiss  her.  and   that   he  merely 

attempted  to  i  isa  her  by  consent,  ami  did  not  intend  to  use  force  to  compel  her 

.  him,  then  It  WOUld  not  he  an  assault.  The  law  requires  that  Ihere 
must  he  :m  Intent  to  Injur*'  before  Ihere  can  he  an  assault.  The  injury  In  this 
Case  would  he  to  the  feelings,  and  the  intent  cannot  lie  presumed,  hecause  no 
personal  violence  or  battery  was  Inflicted  ;  and  this  Intent  the  Jury  should  have 

been  permitted  to  pass  upon  under  appropriate  Instructions."    Henderson,  J., 


2 


ASSAULT,  BATTERY,  AND    MAYHEM.  299 


REGINA  v.  CLARENCE. 

(Court  for  Crown  Cases  Reserved,  1888.    22  Q.  B.  Div.  23.) 

Stephen  J.  The  question  in  this  case  is  whether  a  man  who  knows 
that  he  has  gonorrhoea,  and  who  by  having  connection  with  his  wife, 
who  does  not  know  it,  infects  her,  is  or  is  not  guilty  of  an  offense 
either  under  St.  24  &  25  Vict.  c.  100,  §  20,  or  under  section  47  of  the 
same  act.  Section  20  punishes  every  one  who  "unlawfully  and  ma- 
liciously inflicts  any  grievous  bodily  harm  upon  any  other  person." 
Section  47  punishes  every  one  who  is  convicted  of  "an  assault  occa- 
sioning actual  bodily  harm  to  any  person." 

Before  discussing  in  detail  the  meaning  of  these  words  I  will  make 
one  general  observation.  The  present  case  is  the  first,  so  far  as  ap- 
pears, in  which  any  person  has  ever  been  indicted,  or  at  all  events 
convicted,  of  any  offense  whatever  for  infecting  another  with  a  disease 
of  any  kind,  although  diseases  of  this  kind  are  unhappily  common 
and  legislation  in  reference  to  them  has  taken  place.  The  legislation 
in  question  is  contained  in  St.  29  Vict.  c.  35,  and  some  other  acts  which 
amend  it.  These  acts  were  repealed  in  1886.  They  authorized  the 
detention  in  hospitals  of  diseased  women  under  certain  circumstances, 
but  they  contained  nothing  to  suggest  that  the  communication  of  the 
disease  was  in  itself  a  crime.  If  such  had  been  the  case,  the  acts  in 
question  would  probably  have  been  made  supplementary  to  the  ordi- 
nary administration  of  criminal  justice. 

If  the  present  conviction  is  right,  it  must  be  so  on  some  principle 
which  would  apply  to  women  as  well  as  to  men,  and  to  unmarried 
women  as  well  as  to  wives.  Section  47,  indeed,  could  hardly  apply 
to  women;  but  section  20  would  make  no  distinction  between  the 
sexes.  It  is  also,  I  think,  clear  that,  unless  some  distinction  can  be 
pointed  out  which  does  not  occur  to  me,  the  sections  must  be  held  to 
apply,  not  only  to  venereal  diseases,  but  to  infection  of  every  kind  which 
is  in  fact  communicated  by  one  person  to  another  by  any  act  likely  to 
produce  it.  A  man  who,  knowing  that  he  has  scarlet  fever  or  small- 
pox, shakes  hands  with  a  friend  and  so  infects  him,  may  be  said  to 
fall  under  section  20  or  section  47  as  much  as  the  prisoner  in  this  case. 
To  seize  a  man's  hand  without  his  consent  is  an  assault;  but  no  one 
would  consent  to  such  a  grasp  if  he  knew  that  he  risked  smallpox  by 
it,  and  if  consent  in  all  cases  is  rendered  void  by  fraud,  including 
suppression  of  the  truth,  such  a  gesture  would  be  an  assault  occa- 
sioning actual  bodily  harm  as  much  as  the  conduct  of  the  prisoner 
in  this  case. 

in  Chambless  v.  State,  46  Tex.  Cr.  R.  1,  79  S.  W.  578  (1904).  Accord:  Stripling 
v.  State  (Tex.  Cr.  App.)  80  S.  W.  370  (1904).  It  was  held  in  Fuller  v.  State,  44 
Tex.  Cr.  R.  463.  72  S.  W.  184,  100  Am.  St.  Rep.  S71  (1903),  that  one  is  not  guilty 
of  an  assault  who,  standing  several  feet  from  a  woman,  makes  a  "kissing 
sign" — puckering  his  lips  and  smacking  them — to  her. 


300  ASSAULT,  BATTERY,  AND   MAYHEM.  (Ch.    8 

Not  only  is  there  no  general  principle  which  makes  the  communica- 
tion of  infection  criminal,  but  such  authority  as  exists  is  opposed  to 
such  a  doctrine  in  relation  to  any  disease.  The  following'  are  the  au- 
thorities on  this  subject.  By  St.  1  Jac.  I,  c.  31,  §  7,  it  was  made 
felony  for  any  person,  who  had  under  other  provisions  of  the  act 
been  commanded  to  keep  his  house,  "to  go  abroad  and  converse  in 
company  having  any  infectious  sore  upon  him  uncured."  Upon  this 
Hale,  1  P.  C.  432,  remarks  that  the  statute  is  now  discontinued,  and 
he  adds:  "But  what  if  such  person  goes  abroad  to  the  intent  to 
infect  another,  and  another  is  thereby  infected  and  dies?  Whether 
this  be  not  murder  by  the  common  law  might  be  a  question,  but  if  no 
such  intention  evidently  appears  though  de  facto  by  his  conversation 
another  be  infected,  it  is  no  felony  by  the  common  law,  though  it  be 
a  great  misdemeanor,  and  the  reasons  are:  (1)  Because  it  is  hard 
to  discern  whether  the  infection  arise  from  the  party  or  from  the 
contagion  of  the  air.  It  is  God's  arrow,  etc.  (2)  Nature  prompts 
every  man  in  what  condition  soever  to  preserve  himself,  which  cannot 
be  well  without  mutual  conversation.  (3)  Contagious  diseases,  as 
plague,  pestilential  fevers,  smallpox,  etc.,  are  common  among  man- 
kind by  the  visitation  of  God,  and  the  extension  of  capital  punish- 
ments in  cases  of  this  nature  would  multiply  severe  punishments 
too  far  and  give  too  great  latitude  and  loose  to  severe  punishments." 
Some  of  the  expressions  in  this  passage  would  scarcely  be  employed 
now,  but  it  may  be  taken  as  a  caution  against  wide  and  uncertain  ex- 
tensions of  the  criminal  law,  and  as  a  distinct  proof  that  Hale  did  not 
regard  the  transmission  of  disease  as  an  ordinary  case  of  the  infliction 
of  bodily  harm.  His  statement  that,  though  not  a  felony,  it  would 
be  a  great  misdemeanor  at  common  law  to  infect  another  uninten- 
tionally by  going  about  with  a  plague  sore,  may  at  first  sight  appear 
to  favor  the  maintenance  of  the  conviction  in  this  place ;  but  it  is,  I 
think,  explained  and  its  generality  is  limited  by  Rex  v.  Vantandillo. 
It  was  held  in  that  case  to  be  an  indictable  misdemeanor  to  carry  a 
child  which  had  the  smallpox  along  a  street,  and  the  passage  from 
Lord  Hale  was  the  principal  authority  relied  upon.  The  offense  re- 
ferred to  by  Lord  Hale  is  therefore  the  offense  of  committing  a  pub- 
lic nuisance,  and  his  authority  is  opposed,  rather  than  favorable,  to 
the  notion  that  to  infect  another  with  a  contagious  disease  is  in  the 
nature  of  an  offense  against  the  person.  The  provisions  of  Public 
Health  Act  1875  (St.  38  &  39  Vict.  c.  55)  §§  120-130,  and  in  par- 
ticular section  120,  treats  offenses  by  spreading  infection  in  the  same 
way.  By  that  section  an  infected  person,  who  without  proper  pre- 
cautions exposes  himself  in  any  street,  etc.,  is  liable  to  a  penalty  of 
£5.  These  considerations  make  it  antecedently  improbable  that  the. 
abominable  conduct  of  which  the  prisoner  has  been  convicted  should 
he  in  the  strict  legal  sense  of  the  word  a  crime. 

Infection  by  the  application  of  an  animal  poison  appears  to  me  to 
be  of  a  different  character   from  an  assault.     The  administration  of 


ASSAULT,  BATTERY,  AND   MAYHEM.  301 

poison  is  dealt  with  by  section  24,  which  would  be  superfluous  if 
poisoning  were  an  "infliction  of  grievous  bodily  harm  either  with  or 
without  a  weapon  or  instrument."  The  one  act  differs  from  the  other 
in  the  immediate  and  necessary  connection  between  a  cut  or  a  blow 
and  the  wound  or  harm  inflicted,  and  the  uncertain  and  delayed  opera- 
tion of  the  act  by  which  infection  is  communicated.  If  a  man  by 
a  grasp  of  the  hand  infects  another  with  smallpox,  it  is  impos 
to  trace  out  in  detail  the  connection  between  the  act  and  the  disease, 
and  it  would,  I  think,  be  an  unnatural  use  of  language  to  say  that  a 
man  by  such  an  act  "inflicted"  smallpox  on  another.  It  would  be 
wrong  in  interpreting  an  act  of  Parliament  to  lay  much  stress  on 
etymology,  but  I  may  just  observe  that  "inflict"  is  derived  from 
"infligo,"  for  which,  in  Facciolati's  Lexicon  three  Italian  and  three 
Latin  equivalents  are  given,  all  meaning  "to  strike,"  viz.,  "dare," 
"ferire,"  and  "percuotere,"  in  Italian,  and  "infero,"  "impingo,"  and 
"percutio,"  in  Latin. 

There  is  authority  for  the  proposition  that  poisoning  is  not  an  as- 
sault, though  in  the  case  of  Reg.  v.  Button,  8  C.  &  P.  660,  in  1838, 
Serjeant  Arabin,  after  consulting  the  Recorder  of  London,  Mr.  Law, 
held  that  it  was.  In  Reg.  v.  Dilworth,  2  Mo.  &  Ro.  531,  in  1843,  a 
man  was  indicted  for  administering  poison  with  intent  to  murder, 
and  it  was  suggested  that  if  the  intent  was  not  made  out  the  prisoner 
might  be  convicted  under  St.  1  Vict.  c.  85,  of  a  common  assault,  as  it 
was  involved  in  the  charge,  and  Reg.  v.  Button,  8  C.  &  P.  660,  was 
cited;  but  Coltman,  J.,  said  that  he  disagreed  with  Reg.  v.  Button, 
8  C.  &  P.  660,  and  that  the  prisoner  must  either  be  convicted  or  ac- 
quitted of  the  whole  charge.  In  Reg.  v.  Hanson,  2  C.  &  K.  912,  in 
1849,  Vaughan  Williams,  J.,  after  consulting  Cresswell,  J.,  held  that 
the  administration  of  cantharides  was  neither  a  common  assault  nor 
a  common  law  misdemeanor;  and  Reg.  v.  Walkden,  1  C.  C.  C.  282, 
was  a  decision  to  the  same  effect  by  Parke,  B.1  Upon  these  grounds 
I  am  of  opinion  that  section  20  does  not  apply  to  the  case. 

Is  the  case,  then,  within  section  47  as  "an  assault  occasioning  actual 
bodily  harm"?  The  question  here  is  whether  there  is  an  assault.  It 
is  said  there  is  none,  because  the  woman  consented;  and  to  this  it  is 
replied  that  fraud  vitiates  consent,  and  that  the  prisoner's  silence  was 
a  fraud.  Apart  altogether  from  this  question,  I  think  that  the  act 
of  infection  is  not  an  assault  at  all,  for  the  reasons  already  given. 
Infection  is  a  kind  of  poisoning.  It  is  the  application  of  an  animal 
poison,  and  a  poisoning,  as  already  shown,  is  not  an  assault.  Apart, 
however,  from  this,  is  the  man's  concealment  of  the  fact  that  he 
was  infected  such  a  fraud  as  vitiated  the  wife's  consent  to  his  ex- 

i  Accord:  Garnet  v.  State,  1  Tex.  App.  605.  2S  Am.  Rep.  425  (1S77).  Contra. 
Commonwealth  v.  Stratton,  114  Mass.  303,  20  Am.  Rep.  350  (1S73) ;  Carr  v. 
State,  135  Ind.  1,  34  N.  E.  533,  20  L.  R.  A.  SG3,  41  Am.  St.  Rep.  40S  (1803) ; 
State  v.  Monroe,  121  N.  C.  677,  2S  S.  E.  547,  43  L.  R.  A.  861,  61  Am.  St.  Rep. 
686  (1897). 


302  ASSAULT,  BATTERY,  AND   MAYHEM.  (Ch.    8 

ercise   of   marital    rights,    and    converted    the   act    of   connection    into 
an  assault?     It  seems  to  me  that  the  proposition  that  fraud  vitiates 
consent  in  criminal  matters  is  not  true,  if  taken  to  apply  in  the  fullest 
sense  of  the  word  and  without  qualification.    It  is  too  short  to  be  true, 
as  a  mathematical  formula  is  true.     If  we  apply  it  in  that  sens'e^  to 
the  present  case,  it  is  difficult  to  say  that  the  prisoner  was  not  guilty 
of  rape,  for  the  definition  of  rape  is  having  connection  with  a  woman 
without  her  consent;  and  if  fraud  vitiates  consent,  every  case  in  which 
a  man  infects  a  woman  or  commits  bigamy,  the  second  wife  being 
ignorant  of  the  first  marriage,  is  also  a  case  of  rape.     Many  seduc- 
tions would  be  rapes,  and  so  might  acts  of  prostitution  procured  by 
fraud,  as,  for  instance,  by  promises  not  intended  to  be  fulfilled.    These 
illustrations  appear  to  show  clearly  that  the  maxim  that  fraud  vitiates 
consent  is  too  general  to  be  applied  to  these  matters  as  if  it  were 
absolutely  true.     I  do  not  at  all  deny  that  in  some  cases  it  applies, 
though  it  is  often  used  with  reference  to  cases  which  do  not  fall  within 
it.     For  instance,  it  has  nothing  to  do  with  such  cases  as  assaults  on 
voung  children.    A  young  child  who  submits  to  an  indecent  act  no  more 
consents   to   it   than    a   sleeping  or    unconscious   woman.      The    child 
merely  submits  without  consenting.     The  only  cases  in  which  fraud 
indisputably  vitiates  consent  in  these  matters  are  cases  of  fraud  as  to 
the  nature  of  the  act  done.    As  to  fraud  as  to  the  identity  of  the  person 
by  whom  it  is  done,  the  law  is  not  quite  clear.     In  Reg.  v.  Flattery, 
2  Q.  B.  D.  410,  in  which  consent  was  obtained  by  representing  the  act 
as  a  surgical  operation,  the  prisoner  was  held  to  be  guilty  of  rape. 
In  the  case  where  consent  was  obtained  by  the  personation  of  a  hus- 
band, there  was  before  the  passing  of  the  criminal  law  amendment 
act  of  1885  a  conflict  of  authority.    The  last  decision  in  England,  Reg. 
v.  Barrow,  Law  Rep.  1  C.  C.  R.  158,  decided  that  the  act  was  not  rape, 
and  Reg.  v.  Dee,  14  L.  R.  Ir.  468,  decided  in  Ireland  in  1884,  decided 
that  it  was.    The  criminal  law  amendment  act  of  1885  "declared  and 
enacted"  that  thenceforth  it  should  be  deemed  to  be  rape,  thus  favor- 
ing the  view  taken  in  Reg.  v.  Dee,  14  L.  R.  Ir.  468.    I  do  not  propose 
to  examine  in  detail  the  controversies  connected  with  these  cases.    The 
judgments  in  the  case  of  Reg.  v.  Dee,  14  L.  R.  Ir.  468,  examine  all 

them  minutely,  and  I  think  they  justify  the  observation  that  the 
only  sorts  of  fraud  which  so  far  destroy  the  effect  of  a  woman's  con- 
^t  as  to  convert  a  connection  consented  to  in  fact  into  a  rape  are 
frauds  as  to  the  nature  of  the  act  itself,  or  as  to  the  identity  of  the  per- 
n  who  does  the  act.  There  is  abundant  authority  to  show  that  such 
frauds  as  these  vitiate  consent  both  in  the  case  of  rape  and  in  the  case 
of   indo  "lit.      1    should   myself  prefer  to  say  that  consent   in 

such  cases  does  not  exist  at  all,  because  the  act  consented  to  is  not  the 
act  done.  Consent  to  a  surgical  operation  or  examination  is  not  a 
r./nsent  to  sexual  connection  or  indecent  behavior.  Consent  to  connec- 
tion with  a  husband  is  not  consent  to  adultery. 

I  do  not  think  that  the  maxim  that   fraud  vitiates  consent  can  be 


ASSAULT,  BATTEEY,  AND   MAYHEM.  303 

carried  further  than  this  in  criminal  matters.  It  is  commonly  applied 
to  cases  of  contract,  because  in  all  cases  of  contract  the  evidence  of 
a  consent  not  procured  by  force  or  fraud  is  essential;  but  even  in 
these  cases  care  in  the  application  of  the  maxim  is  required,  because 
in  some  instances  suppression  of  the  truth  operates  as  fraud,  where- 
as in  others  at  least  a  suggestion  of  falsehood  is  required.  The 
act  of  intercourse  between  a  man  and  a  woman  cannot  in  any  case  be 
regarded  as  the  performance  of  a  contract.  In  the  case  of  married 
people  that  act  is  a  part  of  a  great  relation  based  upon  the  greatest  of 
all  contracts,  but  standing  on  a  footing  peculiar  to  itself.  In  all  other 
cases  the  immorality  of  the  act  is  inconsistent  with  any  contract  re- 
lating to  it.  Thus  in  no  case  can  considerations  relating  to  contract 
apply  to  it.  The  effect  of  fraud  upon  a  contract  is  to  render  it  void- 
able at  the  option  of  the  party  defrauded.  This  clearly  cannot  apply 
to  sexual  intercourse.  It  is  either  criminal  if  the  woman  does  not 
consent,  or  if  her  consent  is  obtained  by  certain  kinds  of  fraud,  or  it 
is,  as  this  was,  a  breach  of  matrimonial  duty,  or  it  is  not  criminal  at  all. 

The  woman's  consent  here  was  as  full  and  conscious  as  consent 
could  be.  It  was  not  obtained  by  any  fraud,  either  as  to  the  nature 
of  the  act  or  as  to  the  identity  of  the  agent.  The  injury  done  was 
done  by  a  suppression  of  the  truth.  It  appears  to  me  to  be  an  abuse 
of  language  to  describe  such  an  act  as  an  assault.  It  is  not  stated  at 
what  interval  after  December  20th  the  disease  showed  itself;  but  there 
must  have  been  some  interval  during  which  it  was  uncertain  whether 
infection  had  been  communicated  or  not.  During  this  interval  was 
the  man  guilty  or  not?  If  he  was,  it  seems  extraordinary  to  say  that 
he  had  committed  an  assault  from  which  an  event  which  was  not  in 
his  power  could  set  him  free.  If  he  was  not,  it  seems  to  me  equally 
strange  to  say  that  he  could  be  deprived  of  his  innocence  by  such  an 
event.  In  some  instances,  no  doubt,  such  an  interval  might  elapse. 
If  a  man  laid  a  trap  for  another,  into  which  he  fell  after  an  interval, 
the  man  who  laid  it  would  during  the  interval  be  guilty  of  an  attempt 
to  assault,  and  of  an  actual  assault  as  soon  as  the  man  fell  in.  In 
the  case  of  death  inflicted  by  violence,  the  criminal  might  at  first  be 
guilty  of  an  assault  or  an  unlawful  wounding,  and  his  crime  would 
become  murder  or  manslaughter  on  the  death  of  the  person  wounded ; 
but  in  the  case  of  an  attempt  the  intention  to  consummate  the  crime 
exists  from  the  first,  and  in  the  case  of  murder  the  act  which  ulti- 
mately becomes  murder  is  in  itself  a  crime,  whether  death  ensues  or 
not.  In  this  case  there  was  no  intention,  and  therefore  no  attempt 
to  infect,  and  it  seems  anomalous  to  make  a  consequence  which,  though 
highly  probable,  was  neither  intended  nor  necessary,  relate  back  on  its 
occurrence  in  such  a  way  as  to  turn  an  act  not  punishable  itself  into  a 
crime. 

Two  authorities  were  quoted  to  show  that  such  an  act  as  this  is 
a  crime.  They  are  Reg.  v.  Bennett,  4  F.  &  F.  1105,  in  which  Willes, 
J.,  decided  in  1866  that  a  man  who  infected  his  niece,  a  girl  of  13, 


304  ASSAULT,  BATTERY,  AND   MAYHEM.  (Cll.    8 

might  be  convicted  of  an  indecent  assault,  though  she  consented  to 
sleep  with  him,  and  Reg.  v.  Sinclair,  13  Cox,  C.  C.  28,  in  which  this 
decision  was  followed  in  1867  by  Shee,  J.  The  case  of  Reg.  v.  Ben- 
nett, 4  F.  &  F.  1105,  was  disapproved  of  in  Hegarty  v.  Shine,  2  L.  R. 
Ir.  273,  4  L.  R.  Ir.  288,  though,  as  the  Irish  courts  point  out,  the  ver- 
dict may  possibly  have  been  justified  by  the  facts  as  proved;  the  girl 
having  sworn  that  she  was  asleep  and  could  not  say  what  happened 
to  her.  If  this  was  believed,  there  was  evidence  of  indecent  assault, 
at  least,  if  not  of  rape.  Reg.  v.  Sinclair,  13  Cox,  C.  C.  28,  was  de- 
cided on  the  authority  of  Reg.  v.  Bennett,  4  F.  &  F.  1105. 

For  these  reasons  I  think  there  was  no  assault  in  the  present  case, 
and  that  therefore  it  does  not  fall  within  section  20. 

I  wish  to  observe  on  a  matter  personal  to  myself  that  I  was  quoted 
as  having  said  in  my  Digest  of  the  Criminal  Law  that  I  thought  a 
husband  might,  under  certain  circumstances,  be  indicted  for  rape  on 
his  wife.  I  did  say  so  in  the  first  edition  of  that  work,  but  on  re- 
ferring to  the  last  edition  (page  124,  note)  it  will  be  found  that  that 
statement  was  withdrawn. 

I  think  that  this  conviction  should  be  quashed.  No  one  can  doubt 
the  abominable  nature  of  the  prisoner's  conduct;  but,  if  it  is  to  be 
treated  as  a  crime,  it  must,  I  think,  be  done  upon  express  statutory 
authority.  The  whole  matter  is  surrounded  with  difficulties  with  which 
the  Legislature  alone  is  competent  to  deal,  and  to  which  it  would  be 
out  of  place  to  refer. 

I  am  informed  that  my  Brother  Grantham  agrees  with  this  judg- 
ment.2 

Field,  J.  This  indictment  contains  two  counts,  expressed,  respec- 
tively, in  the  actual  words  of  St.  24  &  25  Vict.  c.  100,  §§  20,  47,  and 
charging  the  prisoner  under  section  20  with  "unlawfully  and  mali- 
ciously inflicting"  upon  his  wife  "grievous  bodily  harm,"  and  under 
section  47  with  "an  assault"  upon  his  wife  "occasioning  actual  bodily 
harm."  The  facts  proved  were  that  the  prisoner  had  sexual  inter- 
course with  his  wife  at  a  time  when  to  his  knowledge  he  was  suffering 
from  gonorrhoea,  his  wife  being  ignorant  of  this  fact;  that,  had  she 
known  of  it,  she  would  not  have  consented  to  the  intercourse;  and 
that  the  result  of  the  connection  was  to  communicate  to  her  the  disease. 
The  learned  Recorder  of  London  directed  the  jury  that  if  these  facts 
re  established  they  might  find  the  prisoner  guilty  on  both  or  either 
of  the  counts.  The  jury  found  the  prisoner  guilty,  and  the  learned 
Recorder   1  I    the  case  now  before   US,   in   which   he  asks  the 

opinion  of  this  courl  whether  his  direction  was  right  in  point  of  law, 
and  whether  upon  these  facts  the  prisoner  could  be  properly  con- 
victed on  both  or  either  of  the  counts. 

The  answer  to  this  question  depends  on  the  true  construction  of 
the  act  under  which  the  indictment  was  preferred,  and  on  a  considcra- 

:       I '  .i  .  Manlaty,  Wlllea,  and  Smith,  .T.T..  and  Pollock,  B.,  deliver- 
ed concurring  opinions,  In  which  Matthew,  J.,  and  limidicston,  B.,  agreed. 


ASSAULT,  BATTERY,  AND    MAYHEM.  305 

tion  of  the  authorities,  and  I  have  come  to  the  conclusion  that  the 
direction  of  the  learned  Recorder  was  right,  and  that  the  prisoner  was 
properly  convicted  on  both  counts. 

The  questions,  then,  are:  First,  did  the  prisoner  "unlawfully  and 
maliciously  inflict  grievous  bodily  harm"  on  his  wife?  Secondly,  did 
the  prisoner  "occasion  bodily  harm"  to  his  wife  by  an  "assault"? 

Now,  it  has  long  been  established  that  a  man  who  takes  indecent 
liberties  with  a  woman,  or  has  or  attempts  to  have  connection  with 
her,  may  be  properly  convicted  either  of  indecent  assault  or  rape, 
which  includes  an  assault,  according  to  the  circumstances  of  the  case, 
if  the  acts  were  done  without  her  consent,  express  or  implied,  or 
against  her  will.  It  is,  I  think,  also  clear  that  if  the  condition. of  the 
man  is  such  that  it  is  an  ordinary  and  natural  consequence  of  the  con- 
tact to  communicate  an  infectious  disease  to  the  woman,  and  he  does 
so,  he  does  in  fact  inflict  upon  her  both  "actual"  and  "grievous  bodily 
harm."  Such  an  act  produces  what  a  great  authority,  Lord  Stowell, 
describes  as  "an  injury  of  a  most  malignant  kind."  See  the  note  to 
Durant  v.  Durant,  1  Hagg.  Eccl.  Cases,  768.  It  is  also  well  settled 
that  every  sane  man  must  be  taken  to  intend  the  natural  and  reason- 
able consequences  of  his  acts,  and  the  intentional  infliction  of  grievous 
bodily  harm,  unless  justified  or  excused  by  law,  is  to  my  mind  "ma- 
licious and  unlawful." 

Thus  far  the  case  rests  upon  what  seem  to  me  to  be  known  and 
generally  adopted  principles.  But  it  is  argued  that  here  there  is  no 
offense,  because  the  wife  of  the  prisoner  consented  to  the  act,  and  I 
entertain  no  doubt  that,  if  that  was  so,  there  was  neither  assault  nor 
unlawful  infliction  of  harm.  Then,  did  the  wife  of  the  prisoner  con- 
sent? The  ground  for  holding  that  she  did  so,  put  forward  in  argu- 
ment, was  the  consent  to  marital  intercourse  which  is  imposed  upon 
every  wife  by  the  marriage  contract,  and  a  passage  from  1  Hale's 
Pleas  of  the  Crown,  p.  629,  was  cited,  in  which  it  is  said  that  a  hus- 
band  cannot  be  guilty  of  rape  upon  his  wife,  "for  by  their  mutual 
matrimonial  consent  and  contract  the  wife  hath  given  up  herself  in 
this  kind  to  her  husband,  which  she  cannot  retract."  The  authority 
of  Hale,  C.  J.,  on  such  a  matter,  is  undoubtedly  as  high  as  any  can 
be;  but  no  other  authority  is  cited  by  him  for  this  proposition,  and 
I  should  hesitate  before  I  adopted  it.  There  may,  I  think,  be  many 
cases  in  which  a  wife  may  lawfully  refuse  intercourse,  and  in  which, 
if  the  husband  imposed  it  by  violence,  he  might  be  held  guilty  of  a 
crime.  Suppose  a  wife,  for  reasons  of  health,  refused  to  consent  to 
intercourse,  and  the  husband  induced  a  third  person  to  assist  him 
while  he  forcibly  perpetrated  the  act;  would  any  one  say  that  the 
matrimonial  consent  would  render  this  no  crime?  And  there  is  the 
great  authority  of  Lord  Stowell  for  saying  that  the  husband  has  no 
right  to  the  person  of  his  wife  if  her  health  is  endangered.  Popkin 
v.  Popkin,  1  Hagg.  Eccl.  Cases,  note  to  Durant  v.  Durant,  765.  It 
seems  to  me,  however,  unnecessary  to  decide  that  question  in  the 
Mik.Cr.L.— 20 


306  ASSAULT,  BATTERY,  AND   MAYHEM.  (Ch.    8 

present  case,  because  the  prisoners  wife  undoubtedly  did  consent  in 
fact  to  the  act  of  intercourse,  and  therefore  consented  to  all  natural 
and  ordinary  attendant  circumstances  or  consequences  of  the  act,  and 
also  to  such  as  were  reasonably  within  her  knowledge  and  contem- 
plation. 

Had,  then,  the  harm  inflicted  upon  or  occasioned  to  the  prisoner's 
wife  been  one  of  the  consequences  of  an  ordinary  natural  and  healthy 
connection,  or  had  she  known  or  had  reasonable  grounds  for  thinking 
that  her  husband  was  in  a  diseased  condition,  her  consent  to  the  con- 
sequences would,  I  think,  be  implied,  and  so  no  offense  would  have 
been  committed.  In  the  same  way  I  think  that,  if  a  man  knowingly 
consorts  with  a  prostitute,  who  gains  her  livelihood  by  promiscuous 
intercourse,  it  may  well  be  implied  that  he  accepts  all  the  consequences ; 
also,  had  the  prisoner  in  this  case  not  been  aware  of  his  condition, 
his  act  would  not  have  been  malicious  or  an  assault,  for,  as  he  would 
have  had  no  reason  to  suppose  that  his  wife  would  do  other  than  con- 
sent, he  would  have  a  right  to  act  upon  the  implication;  and  I  think, 
therefore,  that  upon  the  construction  which  I  am  putting  upon  the 
act  there  will  be  no  danger  of  bringing  within  its  definitions  an  in- 
jury caused  by  an  innocent  or  merely  thoughtless  act  of  affection  be- 
tween husband  and  wife.  But  I  have  said  that  here  there  undoubtedly 
was  consent  on  the  part  of  the  prisoner's  wife  to  the  act  of  intercourse, 
and  it  is  now  necessary  to  consider  what  were  the  actual  circumstan- 
ces attending  this  act  of  intercourse,  and  what  was  the  nature  and 
condition  of  the  intercourse  to  which  the  consent  was  given. 

The  actual  circumstances  were  that  the  prisoner,  knowing  he  had  a 
foul  and  infectious  disease  upon  him,  and  that  the  infection  of  his 
wife  would  be  the  natural  and  reasonable  consequence  of  intercourse, 
solicited  intercourse.  He  also  knew  that  his  wife  consented  to  it  in 
ignorance  of  his  condition.  Under  these  circumstances,  I  think  that 
her  consent  to  the  intercourse  in  fact  was  given  upon  the  implied 
condition  that  to  the  knowledge  of  the  prisoner  the  nature  of  the  in- 
tercourse was  that  to  which  she  had  bound  herself  to  consent  and  had 
been  accustomed  to  consent ;  i.  e.,  a  natural  and  healthy  connection. 
But  the  intercourse  which  the  prisoner  imposed  upon  his  wife  was  of 
a  different  nature — one  which,  in  all  probability,  would  communicate 
to  her  a  foul  disease,  and  to  which  the  jury  have  found  that  she  would 
not  have  consented,  had  she  known  the  state  of  his  health.  It  seems 
to  me,  therefore,  to  follow  that  the  mere  consent  of  the  prisoner's  wife 
to  'in  act  innocent  in  itself,  and  in  no  way  injurious  to  her,  was  no  con- 
■  m  at  all  to  what  the  prisoner  did,  and,  moreover,  that  he  obtained 
such  consent  as  she  gave  by  willfully  suppressing  the  fact  that  he 
was  suffering  from  disease.     Such  an  act  between  husband  and  wife 

.  I  cannot  doubt,  unlawful.     In  the  divorce  court  it  has  been  held  that 

the    willful  or   reckless   communication   of   disease   by   the  one   to  the 

Other  amounts  to  legal  cruelty,  involving  the  liability  to  rescission  of 

narriage  contract  so  far  as  regards  cohabitation  and  intercourse. 


ASSAULT,  BATTERY,  AND   MAYHEM.  307 

Boardman  v.  Boardman,  L.  R.  1  P.  &  D.  233.  There  was,  I  think, 
a  clear  duty  cast  upon  the  prisoner  before  he  solicited  the  intercourse 
to  communicate  his  condition  to  his  wife,  and  the  imposition  of  in- 
tercourse without  such  communication  amounted  to  a  false  represen- 
tation by  act  and  conduct  that  he  was  in  the  same  healthy  and  natural 
condition  as  he  had  been  upon  previous  occasions  of  lawful  intercourse. 

The  result,  therefore,  at  which  I  have  arrived  is  that  there  was 
no  consent  in  fact  by  the  prisoner's  wife  to  the  prisoner's  act  of  inter- 
course, because,  although  he  knew,  yet  his  wife  did  not  know,  and  he 
willfully  left  her  in  ignorance  as  to  the  real  nature  and  character  of 
that  act.  This  being  so,  it  follows  that  there  was  both  an  assault  and 
a  criminal  infliction  of  harm. 

I  have  arrived  at  this  result  by  my  own  unaided  construction  of  the 
statute  and  consideration  of  the  law.  I  now  proceed  to  consider  the 
authorities.  They  may  be  divided,  according  to  the  facts  which  they 
present,  into  three  classes  of  cases.  The  first  class  consists  of  cases  in 
which  a  wife's  consent  has  been  obtained  by  the  fraud  of  the  prisoner, 
inducing  her  to  believe  that  he  was  her  husband.  Reg.  v.  Saunders. 
8  C.  &  P.  265 ;  Reg.  v.  Williams,  8  C.  &  P.  286.  The  second  class 
consists  of  cases  in  which  the  woman's  consent  was  obtained  by  fraudu- 
lent conduct,  inducing  her  to  believe  that  she  was  undergoing  medical 
treatment  or  examination.  Rex  v.  Rosinski,  1  Moody,  C.  C.  19 ;  Reg. 
v.  Case,  4  Cox,  C.  C.  220;  Reg.  v.  Flattery,  2  0.  B.  D.  410.  The 
third  class  consists  of  cases  in  which,  as  in  the  present  case,  the  con- 
sent of  the  woman  was  given  in  consequence  of  the  willful  and  un- 
lawful suppression  of  an  injurious  change  of  natural  and  previously 
known  conditions.  Reg.  v.  Bennett,  4  F.  &  F.  1105;  Reg.  v.  Sin- 
clair, 13  Cox,  C.  C.  28 ;  Hegarty  v.  Shine,  14  Cox,  C.  C.  124,  C.  A. 
145.  Although  these  cases  differ  in  themselves  as  to  the  facts  and 
as  to  the  language  used  by  the  court,  all  of  them,  except  Hegarty  v. 
Shine,  14  Cox,  C.  C.  124,  C.  A.  145,  are,  as  it  seems  to  me,  governed 
by  the  same  principle,  which  is  that,  though  the  woman  consented  to 
the  act  of  intercourse,  she  did  not  consent  to  it  in  its  actual  nature 
and  conditions.  In  Reg.  v.  Case,  4  Cox,  C.  C.  220,  the  girl  did  not 
resist  from  a  bona  fide  belief,  willfully  induced  by  the  prisoner,  that 
she  was  being  treated  medically,  and  the  learned  Recorder  of  London, 
a  judge  of  wide  experience  in  criminal  cases,  directed  the  jury  that, 
if  they  were  satisfied  that  the  act  was  committed  under  such  circum- 
stances, the  prisoner's  conduct  amounted  to  an  assault.  This  direc- 
tion was  approved  by  Wilde,  C.  J.,  who  says  in  his  judgment:  "She 
made  no  resistance  to  an  act  which  she  supposed  to  be  quite  different 
from  what  was  done,  and  therefore  that  which  was  done  was  done  with- 
out her  consent.  Coleridge,  J.,  whose  knowledge  and  experience  in 
these  matters  could  not  be  surpassed,  said :  "She  makes  no  resistance 
only  in  consequence  of  the  confidence  which  she  reposed  in  the  defend- 
ant as  her  medical  adviser.  If  there  had  been  no  consent,  the  defend- 
ant's act  would  have  been  indisputably  an  assault."     Piatt,  B.,  said: 


308  ASSAULT,  BATTERY,  AND   MAYHEM.  (Ch.    8 

"The  girl  consents  to  one  thing,  and  the  defendant  does  another;  that 
other  involving  an  assault."  This  was  a  decision  of  the  Court  for 
the  Consideration  of  Crown  Cases  Reserved.  In  the  case  of  Reg.  v. 
Flattery,  2  Q.  B.  D.  410,  in  the  same  court,  a  case  of  the  second 
class,  the  same  doctrine  was  held;  Kelly,  C.  B.,  saying:  "The  girl 
only  submitted  to  the  plaintiff  touching  her  person  in  consequence 
of  the  fraud  and  false  pretenses  of  the  prisoner,  and  the  only  thing 
she  consented  to  was  the  surgical  operation." 

In  these  cases  the  fraud  by  which  the  consent  was  obtained  was  a 
fraud  as  to  person  and  circumstances,  and  did  not,  as  in  this  case, 
relate  to  the  very  act  of  connection,  its  physical  nature  and  conditions, 
and  it  seems  to  me  to  follow  that  a  consent  induced  by  a  fraud  re- 
lating to  the  physical  nature  and  conditions  of  the  act  itself  falls  still 
more  clearly  within  this  principle.  Accordingly  so  it  was  held  in  Reg. 
v.  Bennett,  4  F.  &  F.  1105.  There  that  very  eminent  judge,  Willes, 
J.,  applied  this  doctrine,  and  held  that  the  consent  to  one  act  obtained 
by  fraud  as  to  its  physical  nature  was  no  consent  to  a  different  act 
injurious  in  its  nature,  and  to  which  the  consent  was  never  intended 
to  be  applied.  In  this  respect  he  was  followed  by  Shee,  J.,  in  Reg.  v. 
Sinclair,  13  Cox,  C.  C.  28. 

It  is  true  that  in  Hegarty  v.  Shine,  14  Cox,  C.  C.  124,  C.  A.  145, 
some  of  the  judges  in  the  Irish  courts  expressed  disapproval  of  the 
ruling  of  Willes,  J.,  in  Reg.  v.  Bennett,  4  F.  &  F.  1105,  as  tending 
to  show  that  any  fraud  is  sufficient  to  convert  a  civil  act  of  breach 
of  duty  into  a  criminal  one,  and  reliance  was  placed  on  this  in  the  ar- 
gument against  the  conviction.  But  I  think  this  disapproval  rests 
upon  a  misunderstanding  of  the  ruling  of  Willes,  J.  As  I  under- 
stand, that  very  learned  judge  never  meant  to  say  that  any  fraud 
must  vitiate  the  consent,  but  that  a  consent  obtained  to  one  act  is  not 
a  consent  to  an  act  of  a  different  nature,  and  if  obtained  by  a  fraud 
as  to  its  nature  would  not  render  the  act  lawful.  In  Hegarty  v.  Shine, 
11  Cox,  C.  C.  124,  C.  A.  145,  in  the  Court  of  Appeal,  Reg.  v.  Bennett, 
4  F.  &  F.  1105,  was  distinguished,  and  in  no  way  departed  from,  and 
the  actual  decision  in  Hegarty  v.  Shine,  14  Cox,  C.  C.  124,  C.  A. 
1  15,  does  not  seem  to  me  in  any  way  to  touch  the  present  case. 

I  think,  therefore,  that  the  conviction  should  be  affirmed.  I  am 
desin  1  that  my  Brother  Ciiaru-.s  concurs  in  this  judgment.8 

Conviction  quashed. 

s Hawkins,  J.,  delivered  a  concurring  opinion,  with  which  Ray,  J.,  agreed. 

Threats  unacc panled  by  any  overl  acl  afford  no  Justification  for  an  as 

s;niit.  People  v.  Wright,  45  Cal.  2<u»  mst:1.);  Rauck  v.  State,  no  [nd.  :'.S4,  11 
X   i;.  450  (1888). 

At  common  law  Insulting  remarks  do  not  justify  an  assault,    state  v.  iior- 

rington,  21  Ark.  195  (1800);  State  v.  Griffin,  87  Mo.  808  (1885).     Bui  tins  rule 

■  ii  changed  by  Btatute  in  some  states.    Splgner  v.  State,  103  Ala.  .",n,  15 

South.  892  (1898);  Murphy  v.  State.  92  Ga.  75,  IT  S.  ED.  845  (1803);  Wood  v. 

TGI,  2  South.  U  IT  (1S87;. 


ASSAULT,  BATTERY,  AND   MAYHEM.  309 

REGINA  v.  COTESWORTH. 

(Nisi  Prius,  1704.    6  Mod.  172.) 

The  indictment  was  for  a  battery  upon  Dr.  R.  The  evidence  was 
that  the  defendant  spit  in  his  face. 

Hoi/r,  C.  J.    It  is  a  battery. 

Though  one  cannot  justify  a  battery  by  son  assault  demesne,  by 
pleading  it  to  an  indictment,  yet  he  may  give  it  in  evidence  upon  a  not 
guilty,  and  he  may  be  thereupon  acquitted. 


REX  v.  GILL. 
(King's  Bench,  1719.     1  Str.  190.) 

Indictment  for  throwing  down  skins  into  a  man's  yard,  which  was 
a  public  way,  per  quod  another  man's  eye  was  beat  out.  On  the  evi- 
dence it  appeared  the  wind  took  the  skin,  and  blew  it  out*  of  the  way, 
and  so  the  damage  happened.  The  Chief  Justice  remembered  the 
case  of  the  hoy  (1  Str.  128)  and  that  in  Hob.  134,  where,  in  exercis- 
ing, one  soldier  wounded  another,  and  a  case  in  the  Year  Book  of 
a  man  lopping  a  tree,  where  the  bough  was  blown  at  a  distance  and 
killed  a  man;  and  in  the  principal  case  the  defendants  were  acquitted. 


STATE  v.  DAVIS. 

(Court  of  Appeals  of  South  Carolina,  1832.     1  Hill,  46.) 

Indictment  for  assault  and  battery,  at  Edgefield.  Fall  term,  1832. 
Verdict — Guilty. 

Johnson,  J.,  delivered  the  opinion  of  the  court. 

The  case  made  by  the  judge's  notes,  taken  on  the  trial,  and  the 
concessions  at  the  bar,  appears  to  be  this:  Mr.  Griffin,  a  gentleman 
of  the  bar,  placed  in  the  hands  of  James  Robertson,  the  prosecutor, 
one  of  the  deputy  sheriffs  of  Edgefield  district,  a  paper  purporting  to 
be  a  mortgage  on  a  negro,  then  in  the  possession  of  Davis.  Robert- 
son found  the  negro  at  Hamburg,  and  took  him  into  his  possession; 
and  having  occasion  to  stop  for  the  night  on  his  way  to  Edgefield, 
when  he  went  to  bed  he  chained  the  negro  to  his  bedpost,  and  in 
addition  to  this  tied  the  negro  with  a  rope,  one  end  of  which  was 
tied  to  his  own  body.  The  defendants  came  to  the  house  at  night,  and 
avowed  their  determination  to  retake  the  negro  at  all  hazards,  and, 
despite  of  Robertson's  remonstrances,  broke  the  chain,  cut  the  rope, 
and  carried  the  negro  off,  without  having  done  any  other  violence  to 
the  person  of  the  prosecutor;  and  the  leading  question  is  whether 
this,  in  law,  was  an  assault. 


310  ASSAULT,  BATTERY,  AND   MAYHEM.  (Ch.    8 

The  general  rule  is  that  any  attempt  to  do  violence  to  the  person 
of  another,  in  a  rude,  angry,  or  resentful  manner,  is  an  assault;  and 
raising  a  stick  or  fist  within  striking  distance,  pointing  a  gun  within 
the  distance  it  will  carry,  spitting  in  one's  face,  and  the  like,  are  the 
instances  usually  put  by  way  of  illustration.  No  actual  violence-  is 
done  to  the  person  in  any  one  of  these  instances ;  and  I  take  it  as  very 
clear  that  that  is  not  necessary  to  an  assault.  It  has  therefore  been 
held  that  beating  a  house  in  which  one  is,  striking  violently  a  stick 
which  he  holds  in  his  hand,  or  the  horse  on  which  he  rides,  is  an 
assault ;  the  thing  in  these  instances  partaking  of  the  personal  in- 
violability. Respublica  v.  De  Longchamps,  1  Dall.  (Pa.)  114,  1  L. 
Ed.  59;  Wamborough  v.  Schanck,  Pen.  Rep.  229,  cited  2  part.  Esp. 
Dig.  173.  What  was  the  case  here?  Laying  the  right  of  property  in 
the  negro  out  of  the  question,  the  prosecutor  was  in  possession,  and, 
legally  speaking,  the  defendants  had  no  right  to  retake  him  with  force. 
As  far  as  words  could  go,  their  conduct  was  rude  and  violent  in  the 
extreme.  They  broke  the  chain  with  which  the  negro  was  confined 
to  the  bedpost,  in  which  the  prosecutor  slept,  and  cut  the  rope  by 
which  he  was  confined  to  his  person,  and  are  clearly  within  the  rule. 
The  rope  was  as  much  identified  with  his  person  as  the  hat  or  coat 
which  he  wore,  or  the  stick  which  he  held  in  his  hand.  The  convic- 
tion was,  therefore,  right. 
"Motion  dismissed.1 


FOSTER  v.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1872.    50  N.  Y.  598.) 

Andrews,  J.2  The  prisoner  intentionally  aimed  a  blow  at  the  head 
of  the  deceased  with  a  dangerous  weapon,  and  with  a  force  likely  to 
fracture  the  skull,  and  which  in  fact  did  crush  it ;  and  it  is  insisted 
that  upon  this  evidence,  and  in  the  absence  of  any  proof  of  antecedent 
or  subsequent  facts  lending  to  establish  it,  the  jury  might  have  found 

i  Compare  Kirland  v.  State,  43  Ind.  146,  13  Am.  Rep.  38G  (1873). 

For  battery  by  the  nse  of  excessive  force,  where  some  degree  of  force  was 
Justifiable,  Bee  Floyd  v.  State,  ante.  p.  -■'<'.>. 

In  England  and  in  tin-  United  Slates  statutes  have  been  enacted  creating 
certain  aggravated  assaults  ami  batteries  substantive  crimes,  and  increasing 
the  common  law  punishment.    Among  ethers  are: 

Assault  with  a  deadly  weapon,  People  v.  War,  20  Cal.  117(1S<;2). 

Assault  wiih  Intent  to  maim,  Rei  v.  ii"it.  ante.  p.  ;>.".. 

Assault  with  Intent  to  Inflict  grievous  bodily  harm,  Rex  v.  Glllow,  ante, 
p.  115. 

Assault  with  Intent  to  nuinler.  Hex  v.  Unit,  ante,  p.  93;  Simpson  v.  State, 
ante,  p.  202;    slate  v.  Morgan,  ante,  p.  256. 

Assault,  with  Intent  to  ravish,  Whitten  v.  State,  ante,  p.  181. 

Maliciously  wounding,  Reg.  v.  Latimer,  ante,  p.  89. 

Wounding  with  intent  to  prevent  lawful  apprehension,  Rex  v.  Dutllu,  ante, 
p.  92 

Stabbing,  Floyd  v.  State,  ante,  i>.  239. 
i  Part  of  ti pinion  la  omit  ted. 


(/  fW 


ASSAULT,  BATTERY,  AND   MAYHEM.  311 

that  the  prisoner's  intent  was  to  fracture  the  skull  or  injure  the  head, 
and  not  to  kill,  and  if  such  intent  had  been  found  there  was  an  as- 
sault with  an  attempt  to  maim,  within  the  statute.  Mayhem  at  com- 
mon law  is  defined  by  Blackstone  as  violently  depriving  another  of 
the  use  oi  such  of  his  members  as  may  render  him  less  able,  in  fight- 
ing, either  to  defend  himself  or  to  annoy  his  adversary.    4  Bl.  201. 

It  was  recognized  as  a  felony  at  a  very  early  period  of  the  common 
law,  and  the  offender  was  punished  by  the  loss  of  the  same  member 
of  which  he  had  deprived  the  party  maimed — "membrum  pro  membro." 

It  was  treated  as  an  offense  against  the  state,  for  the  reason  as- 
signed by  Lord  Coke  (1  Inst.  127)  :  "For  the  members  of  every  sub- 
ject are  under  the  safeguard  and  protection  of  the  law,  to  the  end  a 
man  may  serve  his  king  and  country  when  occasion  shall  be  offered." 

The  special  injuries  which  constitute  mayhem  are  stated  by  Haw- 
kins as  follows: 

"And  therefore  the  cutting  off  or  disabling  or  weakening  a  man's 
hand  or  finger,  a  striking  out  his  eye  or  foretooth,  or  castrating  him, 
are  said  to  be  maims;  but  the  cutting  off  his  ear  or  nose  are  not 
esteemed  maims,  because  they  do  not  weaken,  but  only  disfigure,  him." 
1  Hawkins'  Pleas  of  the  Crown,  107. 

And  Blackstone  treats  it  as  an  injury  resulting  in  a  permanent  dis- 
ability, and  says  it  is  attended  with  this  aggravating  circumstance: 
that  thereby  the  party  injured  "is  forever  disabled  from  making  so 
good  a  defense  against  future  external  injuries  as  he  otherwise  might 
have  done."    3  Bl.  131. 

An  injury  to  the  head  or  skull  is  not  specified  by  Hawkins  or  Black- 
stone as  mayhem;  and  as  the  usual  consequence  of  such  an  injury  is 
either  death  or  temporary  disability,  it  does  not  seem  to  be  embraced 
within  the  definition  of  that  crime  as  given  by  these  commentators. 

In  the  definition  of  mayhem  by  Lord  Coke  the  breaking  of  the  skull 
is  included. 

"Mayhem,"  he  says,  "signifieth  a  corporal  hurt,  whereby  a  man  loseth 
a  member,  by  reason  whereof  he  is  less  able  to  fight,  as  by  putting 
out  his  foretooth,  breaking  his  skull,  striking  off  his  arm,  hand,  or 
finger,  cutting  off  his  leg  or  foot,  or  whereby  he  loseth  the  use  of  any 
of  his  said  members."  Coke,  Litt.  288a. 

And  Lord  Coke  refers  to  the  authority  of  Glanville  and  Britton  in 
support  of  this  definition: 

"Mayhem,"  says  Glanville,  "signifies  the  breaking  of  any  bone  or 
injuring  the  head  by  wounding  or  abrasion.  In  such  case  the  accused 
is  obliged  to  purge  himself  by  the  ordeal — that  is,  by  the  hot  iron, 
if  he  be  a  freeman;  by  water,  if  he  be  a  rustic."  Glanville  (Blain's 
Translation)  book  14,  c.  1,  350.  See,  also,  Britton  (Nichols'  Tranla- 
tion)  liv.  1,  c.  26,  fols.  48b,  49a,  123. 

Some  recognized  instances  of  mayhem  are  omitted  in  Glanville's 
definition,  and  it  would  seem  to  include  any  injury  to  the  head,  how- 


312  ASSAULT,  BATTERY,  AND   MAYHEM.  (Cll.    8 

ever  trivial.  But  no  authority  has  been  cited  subsequent  to  the  time 
of  Lord  Coke,  nor  has  any  come  to  our  notice,  for  the  proposition  that 
a  fracture  of  the  skull  is  mayhem,  except  that  Mr.  East,  in  his  Pleas 
of  the  Crown  (page  393),  after  giving  the  general  definition  of  may- 
hem at  common  law,  and  instances  in  illustration  of  it,  concludes,  ''or 
as  Lord  Coke  adds,  breaking  the  skull." 

But,  whatever  acts  may  have  been  recognized  as  mayhems  at  a  re- 
mote period  of  the  common  law,  the  crime  and  the  punishment  be- 
came the  subject  of  statute  definition  and  regulation.  Some  statutes 
had  been  passed  upon  the  subject  prior  to  the  reign  of  Charles  II,  but 
the  first  general  and  comprehensive  one  was  St.  22  &  23  Car.  II,  c.  1, 
entitled  "An  act  to  prevent  malicious  maiming  and  wounding." 

Chitty  speaks  of  it  as  the  most  important  and  extensive  ancient 
statute  upon  this  subject.  Criminal  Law,  vol.  3,  p.  785.  And  Black- 
stone  says  that  this  and  the  prior  statutes  "put  the  crime  and  punish- 
ment of  mayhem  more  out  of  doubt."    4  Bl.  206. 

By  this  statute  it  is  enacted  that  any  person  who  "shall  on  purpose 
and  of  malice  aforethought,  by  lying  in  wait,  unlawfully  cut  out  or 
disable  the  tongue,  put  out  the  eye,  slit  the  nose  or  lip,  or  cut  off  or 
disable  any  limb  or  member  of  any  subject,  with  intention  in  so  doing 
to  maim  or  disfigure  him  in  any  of  the  manners  aforesaid,"  shall  be 
guilty  of  felony  without  benefit  of  clergy. 

Whatever  may  have  been  the  law  of  mayhem  in  England  antecedent 
to  this  statute,  no  case  can  be  found,  we  think,  arising  since  its  enact- 
ment, in  which  an  injury  to  the  head,  or  any  act  or  injury,  has  been 
regarded  as  mayhem,  other  than  the  acts  and  injuries  enumerated  in 
this  statute. 

It  has  been  regarded  as  defining  what  before  may  have  been  un- 
certain. And  it  was  held  in  Rex  v.  Lea,  1  Leach,  51,  where  a  husband 
had  cut  the  throat  of  his  wife  quite  across,  that  it  was  not  maiming 
within  this  statute. 

The  act  of  Car.  II  has  been  the  basis  of  the  legislation  of  this  state 
on  the  subject  of  maiming. 

The  first  act  was  passed  in  1788,  and  is  entitled  "An  act  to  prevent 
malicious  wounding  and  maiming." 

This  act  was  followed  by  the  act  of  1801,  entitled  "An  act  to  pre- 
vent malicious  maiming,"  which  latter  act  was  substantially  a  re-enact- 
ment of  the  former,  except  in  respect  to  punishment. 

In  both  statutes  the  enumeration  and  description  of  the  injuries 
which  are  made  punishable  is  the  same  as  in  the  English  statute,  and 
no  others  are  included. 

The  Revi  ed  Statutes  (2  Rev.  St.  [1st  Ed.]  p.  664,  pt.  4,  c.  1,  tit. 
2,  §  27)  declare  "that  every  person,  who,  from  a  premeditated  design, 
etc.,  shall,  first,  cut  out  or  disable  the  tongue;  or,  second,  put  out  an 
eye;  or,  third,  slit  the  lip  or  destroy  the  nose;  or,  fourth,  cut  off  or 
disable  any  limb  or  member  of  another  on  purpose,  upon  conviction 


Tv>  o&wJ  v^jzuJ^Xlo  s^  ^r^e  a^a^^^o 


ASSAULT,  BATTERY,  AND   MAYHEM.  313 

thereof,  shall  be  imprisoned  in  a  state  prison,"  etc. — following  the 
enumeration  in  the  previous  statutes.2 

The  statute  of  Car.  II  has  been  followed,  also,  in  the  legislation  by 
Congress  and  of  many  of  the  states  of  the  Union.  See  collection  of 
statutes  in  Wharton's  Criminal  Law,  title  "Mayhem." 

We  are  of  opinion  that  since  that  statute  the  crime  of  mayhem  in- 
cludes those  injuries  only  which  are  therein  enumerated,  and  that 
the  section  of  the  Revised  Statutes  above  cited  was  intended  as  a 
statute  definition  of  that  crime. 

It  does  not  declare,  in  terms,  that  the  acts  therein  enumerated  con- 
stitute maiming;  but  the  section  is  contained  in  the  article  entitled 
"Of  Rape,  Maiming,  etc.,"  and  the  injuries  are  those  which  are  gen- 
erally known  as  maiming,  and  it  includes  all  the  cases  which,  since 
the  time  of  Lord  Coke,  have  come  within  that  designation. 

In  Reg.  v.  Sullivan,  1  C.  &  Marsh.  209,  the  prisoner  was  indicted 
under  St.  7  Wm.  IV  &  1  Vict.  c.  85,  which  enacted  that  any  one  who 
shall  stab,  cut,  or  wound  any  person,  with  intent  to  maim,  disfigure, 
or  disable  such  person,  or  to  do  some  other  grievous  bodily  harm, 
etc.,  shall  be  guilty  of  felony. 

It  appeared  in  the  evidence  that  the  prisoner  with  an  ax  struck  the  I 
prosecutor  on  the  head  with  the  edge  of  it,  and  inflicted  a  cut  upon  it.  / 

Parke,  B.,  in  charging  the  jury,  said:  "There  is  no  proof  of  an 
intent  to  maim  or  disable,  as  the  blow  was  aimed  at  the  head  of  the 
prosecutor.  It  would  have  been  otherwise  if  it  had  been  aimed  at  the 
arm,  to  prevent  his  being  able  to  use  it.  The  question,  therefore,  will 
be  whether  there  was  a  wounding  with  intent  either  to  murder  the 
prosecutor  or  to  do  him  some  grievous  bodily  harm." 

This  is  a  direct  authority,  and  the  opinion  of  an  eminent  judge,  in 
support  of  the  views  herein  expressed. 

It  is  to  be  observed,  moreover,  that  the  case  did  not  arise  under  the 
statute  of  Charles,  which  was  repealed  by  St.  9  Geo.  IV,  c.  31 ;    so 
that  it  stood  upon  the  construction  of  the  words  "to  maim,"  in  the  \  / 
statute  of  Victoria.  X 

We  might  here  close  the  consideration  of  this  case ;  but  we  are  of 
opinion  that  the  result  would  not  be  changed,  although  it  should  be 
held,  according  to  Lord  Coke's  definition,  that  breaking  of  the  skull 
is  or  might  be  a  maiming. 

The  refusal  of  the  court  to  charge  that  if  the  prisoner  intended  to 
maim,  and  not  to  kill,  the  offense  was  murder  in  the  second  degree, 
was  proper,  for  the  reason  that  there  was  no  evidence  upon  which  the 

2  The  present  statute  provides  that  "a  person  who  willfully  with  intent  to 
commit  a  felony,  or  to  injure,  disfigure,  or  disable,  inflicts  upon  the  person 
of  another  an  injury,  which  (1)  seriously  disfigures  his  person  by  any  mutila- 
tion thereof  ;  or  (2)  destroys  or  disables  any  member  or  organ  of  his  body ;  or  (3) 
seriously  diminishes  his  physical  vigor  by  the  injury  of  any  member  or  organ; 
is  guilty  of  maiming,  and  is  punishable  by  imprisonment  for  a  term  not  ex- 
ceeding fifteen  years.  The  infliction  of  the  injury  is  presumptive  evidence  of 
the  intent."    Pen.  Code,  §  206. 


314  ASSAULT,  BATTERY,  AND   MAYHEM.  (Cll.    8 

jury  could  have  found  that  the  prisoner  intended  to  fracture  the  skull 
of  the  deceased,  as  distinguished  from    an  intent  to  kill  him. 

If  the  prisoner  acted  from  premeditation  he  may  have  intended  to 
kill  the  deceased,  or  simply  to  do  him  a  bodily  injury;  but  that  he 
intended  the  particular  injury  of  breaking  the  skull  only  cannot  be 
inferred. 

If  a  blow  aimed  at  an  arm  is  by  accident  deflected  from  its  course 
and  inflicts  a  mortal  wound,  in  such  or  similar  cases,  an  intent  to  maim 
only  might  be  found  by  the  jury;  and  if,  in  this  case,  death  had  not 
resulted,  the  prisoner  might,  perhaps  (assuming  that  the  fracture  of  the 
head  was  a  maiming),  have  been  convicted  of  an  intent  to  maim. 
East's  Pleas  of  the  Crown,  tit.  "Mayhem,"  Vict.  I,  400 ;  Rex  v.  Cooke. 
1  St.  Tr.  54. 

All  concur. 

Judgment  affirmed.8 

s  Under  the  statutes  in  most  states  an  Intent  to  maim  Is  an  essential  ele- 
ment of  mayhem ;  but  it  is  generally  held  that  this  intent  will  be  presumed 
from  the  act  of  maiming,  or  if  the  means  used  were  such  as  would  naturally 
result  in  maiming.  Molette  v.  State,  49  Ala.  18  (1873) ;  State  v.  Jones.  70  Iowa, 
505,  30  N.  W.  750  (188G) ;  State  v.  Hair,  37  Minn.  351,  34  N.  W.  893  (1887) ; 
People  v.  Wright,  93  Cal.  564,  29  Pac.  240  (1892).  In  other  states  it  is  held 
that  no  specific  intent  to  maim  is  necessary,  but  that  it  is  sufficient  If  the  act 
were  done  willfully  or  maliciously.  Davis  v.  State,  22  Tex.  App.  45,  2  S.  W. 
G30  (1886) ;  Terrell  v.  State,  86  Tenn.  523,  8  S.  W.  212  (18S8). 


FALSE   IMPRISONMENT   AND   KIDNAPPING.  31o 


CHAPTER  IX. 
FALSE  IMPRISONMENT  AND  KIDNAPPING. 


False  imprisonment  *  *  *  is  described  to  be  every  restraint  of 
a  man's  liberty  under  the  custody  of  another,  either  in  a  goal,  house, 
stocks,  or  in  the  street,  whenever  it  is  done  without  a  proper  authority 
*  *  *  and  the  punishment  for  the  offence  is  as  in  the  case  of  other 
misdemeanors.     *     *     * 

The  most  aggravated  species  of  false  imprisonment  is  the  stealing 
and  carrying  away,  or  secreting  of  any  person,  sometimes  called  kid- 
napping, which  is  an  offence  at  common  law,  punishable  by  fine,  im- 
prisonment and  pillory. 

1  East,  P.  C.  c.  IX. 


SMITH  v.  STATE. 
(Supreme  Court  of  Tennessee,  1846.    7  Humph.  43.) 

Green,  J.,  delivered  the  opinion  of  the  court.1 

The  plaintiff  in  error  was  indicted  for  an  assault  and  false  imprison- 
ment of  Mark  M.  Rodgers.  The  court  charged  the  jury  "that,  to  make 
out  the  offense  as  charged,  no  actual  force  was  necessary,  but  that  a 
man  might  be  assaulted  by  being  beset  by  another ;  and  if  the  opposi- 
tion to  the  prosecutor's  going  forward  was  such  as  a  prudent  man 
would  not  risk,  then  the  defendant  would,  in  contemplation  of  law, 
be  guilty  of  false  imprisonment.  ' 

This  charge  is  correct  in  all  its  parts,  and  the  facts  were  fairly  left 
to  the  jury.  A  verdict  of  guilty  has  been  pronounced,  and  we  do  not 
feel  authorized  to  disturb  it.  The  prosecutor  and  defendant  disputed 
about  the  ferriage  defendant  claimed.  Smith  insisted  upon  his  de- 
mand, and  said  he  did  not  choose  to  sue  every  man  that  crossed  at 
his  ferry.  Although  he  did  not  take  hold  of  the  prosecutor,  or  offer 
violence  to  his  person,  yet  his  manner  may  have  operated  as  a  moral 
force  to  detain  the  prosecutor. 

And  this  appears  the  more  probable,  as  after  the  affair  was  settled 
the  prosecutor  inquired  what  defendant  would  have  done  if  he  had  not 
paid  the  ferriage  demanded,  to  which  the  defendant  replied  that  "he 
would  have  put  his  carryall  and  horse  back  into  the  boat  and  taken 
them  across  the  river  again."     As  this  determination  existed  in  his 

i  The  opinion  only  is  printed. 


316  FALSE   IMPRISONMENT   AND    KIDNAPPING.  (Ch.  9 

mind,  it  doubtless  was  exhibited  in  the  manner  of  the  defendant,  and 
thus  operated  upon  the  fears  of  the  prosecutor. 
Affirm  the  judgment.2 


DESIGNY'S  CASE. 

(King's  Bench,  16S3.    T.  Raymond,  474.) 

Designy,  a  merchant  trading  to  Jamaica,  spirited  away  the  eldest 
son  of  one  Turbet,  who  was  a  scholar  at  Merchant-Taylor's  School, 
and  a  hopeful  youth.  Turbet  exhibited  an  information  against  De- 
signy,  and  upon  not  guilty  pleaded  he  was  found  guilty  at  nisi  prius 
before  the  Chief  Justice  Pemberton,  the  sitting  after  Trinity  Term 
last,  and  this  last  Michaelmas  Term  he  appeared  in  court,  and  was 
fined  £500  and  to  lie  in  prison  till  he  paid  it.3 

2  In  Bird  v.  Jones,  7  Q.  B.  742  (1854),  the  court,  Denman.  C.  J.,  dissenting, 
held  that  where  the  plaintiff  attempting  to  pass  in  a  particular  direction,  was 
obstructed,  and  prevented  from  going  in  any  direction  but  one,  not  being  that 
in  which  he  had  endeavored  to  pass,  there  was  no  imprisonment. 

s  Only  so  much  of  the  case  as  relates  to  kidnapping  is  printed. 

In  Burns  v.  Commonwealth,  129  Pa.  138,  18  Atl.  75G  (1889),  it  was  held  that 
where,  on  a  decree  for  divorce,  the  custody  of  the  child  was  assigned  to  the 
mother,  and  the  father  seized  and  carried  it  away,  he  was  not  guilty  of  kid- 
napping, either  at  common  law  or  under  the  statute. 

Contra,  under  the  statute  of  New  Hampshire:  State  v.  Farrar,  41  N.  H. 
53  (1860). 

; 


*/,   00*^<$M^ yrwrv&k  uft^ Portion.  317 


>WK/ 


CH  0?  l^JU^  '%a!  'ifc<Le^^pw-  ^/ 


CHAPTER  X. 
ABORTION. 


MILLS  v.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1850.    13  Pa.  631.) 

Error  to  the  court  of  quarter  sessions  of  Dauphin  •county. 

Mills  had  been  tried  for  an  attempt  to  procure  abortion  of  a  female, 
tried  at  November  sessions,  1849.  Defendant  was  convicted  and  sen- 
tenced to  undergo  punishment  in  the  Dauphin  county  prison  by  sepa- 
rate confinement  at  labor  for  and  during  the  term  of  one  year,  to  com- 
mence and  be  computed  from  the  expiration  of  the  sentence  on  the 
indictment  for  attempting  to  procure  abortion  of  another  female,  etc. 

Coulter,  J.1  The  error  assigned  is  that  the  indictment  charges 
the  defendant,  with  intent  to  cause  and  procure  the  miscarriage  and 
abortion  of  the  said  Mary  Elizabeth  Lutz,  instead  of  charging  the 
intent  to  cause  and  produce  the  miscarriage  and  abortion  of  the  child. 
But  it  is  a  misconception  of  the  learned  counsel  that  no  abortion  can 
be  predicated  of  the  act  of  untimely  birth  by  foul  means. 

Miscarriage,  both  in  law  and  philology,  means  the  bringing  forth 
the  foetus  before  it  is  perfectly  formed  and  capable  of  living,  and  is 
rightfully  predicated  of  the  woman,  because  it  refers  to  the  act  of 
premature  delivery.  The  word  "abortion"  is  synonymous  and  equiva- 
lent to  "miscarriage"  in  its  primary  meaning.  It  has  a  secondary 
meaning,  in  which  it  is  used  to  denote  the  offspring.  But  it  was  not 
used  in  that  sense  here,  and  ought  not  to  have  been.  It  is  a  flagrant 
crime  at  common  law  to  attempt  to  procure  the  miscarriage  or  abor- 
tion of  the' woman,  because  it  interferes  vrth  or  violates  the  mysteries 
of  nature  in  that  process  by  which  the  human  race  is  propagated  and 
continued.  It  is  a  crime  against  natirre,  which  obstructs  the  fountain 
of  life,  and  therefore  it  is  punished.  WThe  next  error  assigned  is  that 
it  ought  to  have  been  charged  in  the  count  that  the  woman  had  become 
quick.  But,  although  it  has  been  so  held  in  Massachusetts  and  some 
other  states,  it  is  not,  I  apprehend,  the  law  in  Pennsylvania,  and  never 
ought  to  have  been  the  law  anywhere.  It  is  not  the  murder  of  a  living 
child  which  constitutes  the  offense,  but  the  destruction  of  gestation 
by  wicked  means  and  against  nature.  The  moment  the  womb  is  in- 
stinct with  embryo  life,  and  gestation  has  begun,  the  crime  may  be 
perpetrated.  The  allegation  in  this  indictment  was  therefore  suffi- 
cient, to  wit:     "That  she  was  then  and  there  pregnant  and  big  with 

*  Part  of  this  case  is  omitted. 


318  ABORTION.  (Ch.  10 

child."  By  the  well-settled  and  established  doctrine  of  the  common 
law,  the  civil  rights  of  an  infant  in  ventre  sa  mere  are  fully  protected 
at  all  periods  after  conception.  3  Coke's  Institutes.  A  count  charging 
a  wicked  intent  to  procure  miscarriage  of  a  woman,  "then  and  there 
being  pregnant,"  by  administering  potions,  etc.,  was  held  good  on 
demurrer  by  the  Supreme  Court  of  this  state.  Mss.  Reps.  January, 
1846 ;  Whart.  Crim.  Law,  308.  There  was  therefore  a  crime  at  com- 
mon law  sufficiently  set  forth  and  charged  in  the  indictment. 

But,  although  we  see  no  error  in  the  record,  the  sentence  must  be 
reformed  on  account  of  certain  proceedings  in  this  court  and  dehors 
this  record. 

Judgment  affirmed  as  modified.2 

2  Accord:  State  v.  Slagle,  83  N.  C.  630  (1880).  Contra:  Commonwealth  v. 
Parker,  9  Mete.  263,  43  Am.  Dec.  396  (1845) ;  State  v.  Cooper,  22  N.  J.  Law,  52, 
51  Am.  Dec.  248  (1849). 


RAPE.  319 

CHAPTER  XI. 
RAPE. 


There  is  amongst  other  appeals  a  certain  appeal,  which  is  called 
concerning  the  rape  of  virgins,  and  the  rape  of  a  virgin  is  a  certain 
crime,  which  a  woman  charges  against  a  man,  by  whom  she  says 
that  she  has  been  violently  overpowered  against  the  peace  of  the  lord 
the  king,  which  crime,  if  it  be  proved,  there  follows  a  penalty,  namely 
the  loss  of  members,  that  there  shall  be  member  for  member,  because 
when  a  virgin  is  deflowered,  she  loses  a  member  and  therefore  the 
deflowerer  should  be  punished  in  that  member  with  which  he  has  of- 
fended, let  him  therefore  lose  his  eyes,  on  account  of  his  looking  at 
the  beauty,  for  which  he  coveted  possession  of  the  virgin,  and  let  him 
lose  his  testicles,  which  brought  on  the  lust  of  ravishment.  But  this 
penalty  does  not  follow  in  the  case  of  every  female,  although  she  should 
be  overpowered  by  violence.  Nevertheless,  another  severe  and  still 
more  severe  penalty  follows,  according  as  she  is  a  married  woman  or 
a  widow  living  honestly,  a  woman  of  saintly  character,  or  some  other 
kind  of  matron.  Likewise  a  lawful  concubine  or  another  making  her 
livelihood  without  any  discrimination  of  persons,  all  of  whom  the 
king  ought  to  protect  for  the  sake  of  his  own  peace,  but  there  will  not 
be  in  each  case  a  like  punishment.  Formerly  the  deflowerers  of  vir- 
gins and  of  chastity  were  hanged,  and  their  abettors,  since  such  per- 
sons were  not  clear  of  the  crime  of  homicide,  and  chiefly  since  vir- 
ginity and  chastity  cannot  be  restored;  but  in  modern  times  it  is 
differently  observed,  that  for  the  defilement  of  a  virgin  members  are 
lost,  as  above  said,  and  concerning  others  other  grave  corporal  pun- 
ishment follows,  but  nevertheless  without  the  loss  of  life  or  members.1 

Bracton,  f.  147. 


REX  v.  W.  D. 
(King's  Bench,  1570.     Dyer,  304.) 

One  W.  D.  was  arraigned  in  B.  R.  upon  an  indictment  of  rape  on 
a  girl  or  damsel  of  seven  years  of  age,  and  no  more;  s.  that  he  fel- 
oniously ravished  and  carnally  knew  her.  And  he  pleaded  not  guilty. 
And  by  good  evidence  of  divers  women,  matrons,  he  was  found  guilty. 
But  the  court  doubted  of  rape  in  so  tender  a  child.  But  if  she  had 
been  nine  years  and  more,  it  would  have  been  otherwise. 

i  St.  Westm.  I  (1275)  fixed  the  punishment  on  conviction  at  two  years  im- 
prisonment and  ransom  at  the  king's  pleasure. 

St.  Westm.  II  (1285)  provided  the  punishment  of  "life  and  member." 


i     r 


I  ■ 


520 


RAPE. 


(Ch.  11 


"For  plain  declaration  of  law,  be  it  enacted,  that  if  any  person  shall 
unlawfully  and  carnally  know  and  abuse  any  woman-child  under  the 
age  of  ten  years,  every  such  unlawful  and  carnal  knowledge  shall  be 
felony,  and  the  offender  thereof,  being  duly  convicted,  shall  suffer  as 
a  felon  without  allowance  of  clergy."  x 

St.  18  Eliz.  c.  7,  §  4. 


REGINALD'S  CASE. 
(Warwickshire  Eyre,  1221.    Select  Pleas  of  the  Crown  [Sel.  Soc]  PI.  166.) 

Margery,  daughter  of  Aelfric,  appeals  Reginald,  son  of  Aunfrey  of 
Coventry,  for  that  in  the  king's  peace  on  the  vigil  of  St.  Paul  he 
raped  her.  *  *  *  The  jurors  say  that  he  is  not  guilty  of  rape,  be- 
cause a  long  time  before  this  he  had  her  of  her  own  free  will,  and 
again  two  years  afterward  in  the  house  of  her  father,  and  they  say 
ihat  no  cry  was  raised.  And  so  it  is  considered  that  he  go  thence  quit ; 
and  she  be  in  mercy  for  her  false  appeal.    Let  her  be  in  custody. 


DON  MORAN  v.  PEOPLE. 

(Supreme  Court  of  Michigan,  1872.    25  Mich.  356,  12  Am.  Rep.  2S3.) 

Christiancy,  C.  J.2  The  court  charged  the  jury  as  follows: 
"If  you  find  that  the  defendant  represented  to  the  complaining  wit- 
ness that,  as  a  part  of  his  medical  treatment,  it  was  necessary  for  her 
to  have  carnal  connection  with  him,  that  such  representations  were 
false  and  fraudulent,  that  she  believed  it,  and,  relying  upon  it,  con- 
sented to  the  solicitations  of  the  defendant,  and  had  connection  with 
him,  and  that  such  representations  were  made  for  the  purpose  of  in- 
ducing her  to  give  such  consent,  and  that  without  it  she  would  not 
have  yielded,  the  defendant  is  guilty  of  the  crime  charged  against 
him." 

It  will  be  noticed  that  this  charge  leaves  out  and  wholly  ignores  all 
idea  of  force  as  a  necessary  element  of  the  crime  charged;  and  the 
jury  were,  in  effect,  told  that  the  defendant  might  be  found  guilty  of 
the  rape,  though  he  neither  used,  nor  threatened  to  use,  any  force 
whatever  in  case  of  her  refusal,  and  though  she  might  have  assented 

i  The  presenl  Btatute  (St.  48  &  49  Vict.  c.  89)  makes  unlawful  and  carnal 
knowledge  of  a  girl  under  L3  years  felony,  and  between  L8  and  16  years  a 
misdemeanor,  similar  statutes  arc  in  force  in  tins  country.  Dnder  these  stat- 
in. %  penetration  la  uecessary.  People  v.  Howard,  1 1".  Oal.  '<\u>,  76  Pac.  1116 
<  L904) ;  stair  v.  Dalton,  106  Mo.  163,  17  8.  \v.  700  (1891);  Hardtke  v.  stale,  67 
wi-  562,  80  N.  W.  723  (1886).  The  consenl  of  the  female  is.  however,  Imma- 
terial. Bee  Oarothera  v.  state.  7.".  Ark.  574,  ss  8.  w.  686  (1905);  State  v.  Day, 
L88  Mo.  859,  87  B.  W.  465  (1905). 

i  Part  of  this  ease  is  omitted. 


y<»^^bWr*i 


RAPE.  321 

without  any  constraint  produced  by  the  fear  or  apprehension  of  force, 
or  any  dangerous  or  serious  consequences  to  herself  if  she  refused  or 
resisted. 

This  feature  of  the  charge  is  assigned  as  error,  and  presents  the 
only  question  raised  in  the  case  by  the  plaintiff  in  error. 

The  definition  of  rape,  as  generally  given  in  the  English  books,  is 
that  "rape  is  the  unlawful  carnal  knowledge,  by  a  man  of  a  woman, 
forcibly  (or  by  force),  and  against  her  will."  3  Coke's  Inst.  (Thomas' 
Ed.)  549;  1  Hale,  P.  C.  628;  Hawkins,  P.  C.  (Cur.  Ed.)  122;  4 
Bl.  Com.  210;  1  Russ.  on  Cr.  (Greenl.  Ed.)  675.  This  definition  de- 
pended, perhaps,  partly  upon  the  common  law,  but  mainly  upon  two 
early  and  rather  loosely  worded  English  statutes,  one  of  which  (St. 
Westm.  II,  c.  34)  expressly  made  force  an  element  in  the  crime,  if 
the  party  were  attainted  at  the  king's  suit  (though  not  when  the  pro- 
ceeding was  by  appeal),  and  the  other  (St.  Westm.  I,  c.  13)  which 
did  not  require  force  as  an  element,  except  as  it  might  be  inferred 
from  the  word,  "ravished."  See  2  Bish.  Cr.  L.  §§  1067  to  1069,  where 
the  substance  of  these  statutes  is  given.  And,  as  remarked  by  Mr. 
Bishop  (2  Bish.  Cr.  L,.  §  1073),  the  more  correct  definition  to  be 
gathered  from  these  statutes  would  have  been:  "Rape  is  the  unlaw- 
ful carnal  knowledge  by  a  man  of  a  woman,  by  force,  when  she  does 
not  consent."  The  difference  between  the  two  definitions,  however, 
would  seem  to  be  important  only  in  cases  where  the  female  with  whom 
the  connection  is  had  may  be  said  to  have  no  will,  as  in  the  case  of  an 
idiot,  or  insane  person,  or  one  in  a  state  of  unconsciousness,  in  which 
cases,  if  anywhere,  the  force  necessary  to  accomplish  the  act  itself 
without  resistance  could  possibly  be  held  to  constitute  the  force  con- 
templated by  the  definition  of  the  offense.  See  Rex  v.  Ryan,  2  Cox 
C.  C.  115;  Reg.  v.  Fletcher,  Bell,  C.  C.  63;  Reg.  v.  Camplin,  1  Den. 
C.  C.  89. 2  But  this  particular  class  of  cases  has  no  special  bearing 
upon  the  case  now  before  us  (and  we  do  not  discuss  it)  ;  nor  are  we 
embarrassed  by  any  uncertainty  in  the  definition  of  the  offense. 

Our  statute  has  adopted  substantially  the  definition  first  above  given 
from  the  English  authorities.  Section  5730,  Comp.  Laws  1857,  de- 
clares :  "If  any  person  shall  ravish  and  carnally  know  any  female  of 
the  age  of  ten  years  or  more,  by  force  and  against  her  will,  *  *  * 
he  shall  be  punished,"  etc. 

In  the  interpretation  of  this  statute,  it  is  clear  that  the  term  "by 
force"  must  not  be  wholly  rejected  or  ignored,  but  that  some  effect 
must  be  given  to  it,  and  the  language  of  the  provision  certainlv  re- 
quires something  more  to  be  shown  than  if  these  words  had  been 

2  It  Is  generally  so  held.  See,  intercourse  with  imbecile,  Reg.  v.  Fletcher, 
8  Cox,  C.  C  131  (1859) ;  State  v.  Tarr,  28  Iowa,  397  (1SG9) ;  State  v.  Atherton, 
50  Iowa.  189,  32  Am.  Rep.  134  (1878);  State  v.  Williams,  149  Mo.  49G,  51  S. 
W.  S8  (1S09);  with  woman  asleep.  Payne  v.  State,  40  Tex.  Cr.  R.  202,  49  S. 
W.  604,  76  Am.  St.  Rep.  712  (1899)  ;  State  v.  Welch.  191  Mo.  179,  89  S.  W.  945 
(1905) ;  with  drunken  woman,  Commonwealth  v.  Burke,  105  Mass.  376,  7  Am. 
Rep.  531  (1870). 

Mik.Cb.L.— 21 


322  rape.  (Ch.  1 1 

omitted;  and  it  is  equally  clear  that  if  that  particular  kind  and  amount 
of  force  only  is  required  which  is  always  essential  to  the  act  of  sexual 
connection  itself,  when  performed  with  the  assent  of  the  woman,  then 
no  effect  whatever  is  given  to  the  term  "by  force,"  but  the  interpre- 
tation and  the  effect  of  the  statute  will  be  precisely  the  same  as  if  these 
words  were  not  contained  in  it.  This  interpretation,  therefore,  is  not 
permissible.  Some  effect  must  be  given  to  the  words ;  and  such  has 
been  the  almost,  if  not  entirely,  uniform  course  of  decision,  both  in 
England  and  in  this  country,  where  the  definition  of  the  offense  is 
substantially  the  same  as  that  given  by  our  statute,  when  the  charge 
has  been  for  the  actual  commission  of  the  rape  upon  a  female  of  the 
age  of  proper  discretion,  of  sound  mind,  and  in  full  possession  of  her 
faculties,  however  fraudulent  the  means,  or  false  the  pretenses,  by 
which  her  consent  was  procured.  I  have  not  been  able  to  find  a  single 
well-authenticated  case,  where  the  question  was  directly  raised,  in 
which  it  has  been  directly  decided  the  other  way.  The  anonymous 
case  cited  in  the  note  to  1  Wheeler's  Cr.  Cases,  381,  and  referred  to 
by  Air.  Wharton  (Cr.  Law,  §  1144)  and  by  Mr.  Bishop  (2  Cr.  Law, 
§  1080),  to  the  effect  that  force  is  not  necessary  in  the  commission 
of  rape,  but  that  stratagem  may  supply  its  place,  is  stated  as  a  mere 
rumor  of  a  decision  made  at  Albany  by  Chief  Justice  Thompson,  and, 
as  very  properly  remarked  by  the  court  in  Walter  v.  People,  50  Barb. 
(N.  Y.)  144,  "loose  statements  of  this  kind  are  entitled  to  no  con- 
sideration whatever."  In  State  v.  Shepard,  7  Conn.  54,  the  woman 
was  asleep,  and  did  not  discover  the  fact  until  defendant  had  violated 
her  person,  and  her  first  impression  was  that  it  was  her  husband.  As 
soon  as  she  awoke  and  became  sensible  of  the  situation,  he  sprang 
from  the  bed.  The  charge  was  for  an  assault  with  intent  to  com- 
mit a  rape.  The  prisoner's  counsel  contended  that,  if  there  was  any 
carnal  knowledge  obtained,  it  was  a  rape,  and  the  prisoner  could  not 
be  convicted  of  the  mere  assault  with  intent,  etc.,  as  the  less  offense 
was  merged  in  the  greater.  The  only  question  discussed  was  whether 
proof  of  a  rape  would  sustain  an  indictment  for  an  attempt  to  commit 
it;  and,  as  very  properly  remarked  by  the  counsel  for  plaintiff  in 
error  in  the  case  before  us,  the  counsel  for  the  prisoner  in  that  case 
overlooked  a  good  defense  in  the  attempt  to  maintain  a  frivolous  one. 
The  case  of  Regina  v.  Stanton,  1  C.  &  K.  415,  has  been  sometimes 
cited  as  sustaining  nearly  the  same  doctrine  as  that  cited  from  the 
note  to  Wheeler's  Cr.  Cases.  But  it  was  the  case  of  an  indictment 
for  an  assault  with  intent  to  commit  a  rape,  where  the  prisoner,  a 
physician,  had  obtained  access  to  the  person  of  the  woman  under  pre- 
tense of  administering  an  injection,  and  commenced  to  have  carnal 
connection  with  her,  when  she,  discovering  it,  got  up  and  ran  out  of 
tin-  room.  This  was  clearly  an  assault,  and  the  only  question  was 
windier  the  intent  existed  as  charged.  As  it  did  not  appear  that  the 
prisoner  had  intended  to  use  force  in  case  of  resistance,  it  was,  of 
e,  bul  an  a  -anit  only,  and  was  so  held  by  the  court ;   but  when 


RAPE.  323 

the  court  say  that,  if  that  intent  had  appeared,  it  would  have  consti- 
tuted the  completed  offense  of  rape,  they  express  an  opinion  upon  a 
question  not  in  the  case.  This  is  not  the  only  case  in  which  it  seems 
to  have  been  obscurely  shadowed  forth  that,  when  the  defendant  has 
succeeded  in  obtaining  the  connection  without  force,  actual  or  threat- 
ened, and  without  resistance,  by  falsely  personating  the  husband,  the 
mere  intent  to  use  force,  had  it  become  necessary  to  accomplish  his 
purpose,  would  satisfy  the  requirement  of  force  involved  in  the  defini- 
tion of  rape.  See  Rex  v.  Jackson,  Russ.  &  Ry.  C.  C.  487.  And  a 
similar  idea  seems  to  have  been  obscurely  intimated  in  some  American 
cases.  But,  with  all  deference,  I  must  be  allowed  to  suggest  whether 
it  has  not  resulted  from  confounding  two  distinct  offenses — the  com- 
pleted offense  of  rape,  and  the  attempt,  or  an  assault  with  the  intent, 
to  commit  it.  And  I  am  compelled  to  say  I  am  wholly  unable  to  dis- 
cover how  the  intent  to  resort  to  force  in  such  cases,  when  it  is  not 
in  fact  either  resorted  to  or  in  any  manner  threatened,  can  be  at  all 
material  upon  the  question  whether  a  rape  has  been  committed,  or 
how  such  intent,  never  brought  to  the  notice  of  the  woman  by  word 
or  act,  can  satisfy  the  requirement  of  force  in  the  legal  definition  of 
the  offense;  and  such,  I  think,  is  the  prevailing  view  of  the  English 
courts  (see,  among  other  cases,  Reg.  v.  Saunders,  8  C.  &  P.  265;  Reg. 
v.  Williams,  Id.  286;  Reg.  v.  Clarke,  Dears.  397;  Reg.  v.  Fletcher, 
Law  Reports,  1  Cr.  Cases  Reserved,  39,  14  Law  T.  [N.  S.]  573,  12 
Jur.  [N.  S.]  505),  as  well  as  of  the  American  courts,  though  such 
intent  would,  of  course,  constitute  a  necessary  and  controlling  ele- 
ment in  a  charge  for  an  assault  with  intent  to  commit  a  rape,  though 
in  no  way  communicated  to  the  intended  victim. 

But  if  we  admit  that  the  intent  to  resort  to  force,  if  required  to 
accomplish  the  criminal  purpose,  in  a  case  like  the  present,  would, 
though  never  used  or  threatened,  constitute  the  transaction  a  rape, 
this  would  not  sustain  the  charge  in  the  present  case,  which  did  not 
even  require  the  existence  of  such  intent. 

The  true  rule  as  to  force  in  cases  of  rape  generally  was  recognized 
by  this  court  in  People  v.  Valentine  Cornwell  (not  Croswell  v.  People, 
as  printed  in  the  Report)  13  Mich.  433,  87  Am.  Dec.  774,  where  it 
was  said  that  "the  essence  of  the  crime  is  not  the  fact  of  intercourse, 
but  the  injury  and  outrage  to  the  feelings  of  the  woman  by  means 
of  the  carnal  knowledge  effected  by  force."  And  there  being  no 
force  used  or  threatened  in  that  case,  but  strong  grounds  for  believ- 
ing that  the  woman  was  the  soliciting  party,  the  connection  was  prop- 
erly held  not  to  constitute  rape,  though  the  woman  was  not  of  sound 
mind,  and  had  no  intelligent  understanding  at  the  time  the  act  was 
committed,  but  was  in  good  physical  health.  In  cases  where  the  wo- 
man is  entirely  insensible  from  idiocy,  or  from  the  effect  of  drugs 
administered  (though  the  point  is  not  here  involved),  it  may  be  en- 
tirely right  to  hold  a  very  slight  degree  of  force  sufficient;  and  that 
amount  of  force  which,  in  such  cases,  would  always  be  necessary,  bo 


324  rape.  (Ch.  II 

yond  what  would  be  required  with  a  consenting  party,  might,  perhaps, 
properly  be  held,  as  it  sometimes  has  been  held,  sufficient  to  make  the 
transaction  a  rape,  as  suggested  by  my  Brother  Cooley  in  People  v. 
Cornwell,  ubi  supra. 

And  when  drugs  are  administered,  or  procured  to  be  administered, 
by  the  criminal,  for  the  purpose  of  taking  away  or  lessening  the 
power  of  resistance,  and  having  that  effect,  there  may  be  no  ground 
for  distinction  between  the  force  thus  exerted  by  him  through  the 
agency  of  the  drugs  and  that  directly  exerted  by  his  hand  and  for  the 
same  purpose. 

The  only  question  really  involved  in  People  v.  Cornwell,  above 
cited,  was  whether,  under  the  circumstances  of  that  case,  the  defend- 
ant could  be  held  guilty  without  proof  of  force  in  any  form,  actual, 
or  threatened,  and  it  was,  I  think,  properly  held  by  us  that  he  could  not. 

If  the  statute,  or  the  definition  of  rape,  did  not  contain  the  words 
"by  force,"  or  "forcibly,"  doubtless  a  consent  procured  by  such  fraud 
as  that  referred  to  might  be  treated  as  no  consent;  but  the  idea  of 
force  cannot  be  thus  left  out  and  ignored,  nor  can  such  fraud  be  al- 
lowed to  supply  its  place,  though  it  would  doubtless  supply  and  satisfy 
all  the  other  terms  of  the  definition,  and,  so  far  as  the  intimation  in 
question  is  to  be  understood  as  going  further  and  dispensing  with 
all  idea  of  force,  it  must  be  understood  as  an  intimation  of  the  court 
of  what,  in  their  opinion,  the  law  ought  to  be,  rather  than  what  it  is. 
And,  upon  abstract  principles  of  right  and  wrong,  a  sexual  connection 
obtained  by  falsely  and  fraudulently  personating  the  husband  of  a 
woman,  or  by  a  physician  fraudulently  inducing  a  female  patient  to 
believe  such  connection  essential  to  a  course  of  medical  treatment, 
must  be  considered  nearly,  if  not  quite,  as  criminal  and  prejudicial  to 
society  as  when  obta'ined  by  force  or  any  apprehension  of  violence ; 
and  it  might,  and  in  my  opinion  would,  be  judicious  for  the  Legislature 
to  make  some  provision  for  punishment  in  cases  of  this  kind.  But  it 
is  not  for  the  judiciary  to  legislate,  by  straining  the  existing  criminal 
law  to  bring  such  cases  within  it.8 

For  the  reasons  given,  I  think  the  judgment  of  the  recorder's 
court  should  be  reversed,  and  a  new  trial  awarded. 
/  And,  with  reference  to  a  new  trial,  it  is  proper  for  the  guidance 
of  the  recorder's  court  to  consider  the  nature  of  the  evidence  set 
forth  in  the  record,  and  which  will  probably  appear  upon  the  new 
trial,  and  to  determine  what  charm'  the  stale  of  facts  would  war- 
rant, or  whether  there  was  .anything  in  the  evidence  which  would 
authorize  the  jury  to  find  that  the  carnal  connection  was  obtained 
"by  force  and  against  the  will"  of  the  party  injured. 

3  Carn.-ii  Intercourse  obtained  by  personating  f iio  husband  lms  been  made 

r:i|K-  by  statute  In  England  and  In  sonic  states.     See  St  48  >v    19  Vict,  c,  68, 

|  J;  Mooney  v.  State,  29  Tex.  App.  257,  i">  S.  W.  724  (1890);  State  v   Williams, 

\j  128  X.  C.  578,  87  S.  E.  952  (1901).    The  Baine  resull  has  been  arrived  at,  with- 

\,  tint    peclul  enactment,  by  the  Irish  Court  Cor  Crown  Cases  Reserved,  lu  Reg. 

v.  I..-,.,  15  Cox,  a  a  579  (1884). 


RAPE.  3liti 

We  think  it  is  well  and  properly  settled  that  the  term  "by  force" 
does  not  necessarily  imply  the  positive  exertion  of  actual  physical 
force  in  the  act  of  compelling  submission  of  the  female  to  the  sexual 
connection,  but  that  force  or  violence  threatened  as  the  result  of 
noncompliance,  and  for  the  purpose  of  preventing  resistance  or  ex- 
torting consent,  if  it  be  such  as  to  create  a  real  apprehension  of 
dangerous  consequences,  or  great  bodily  harm,  or  such  as  in  any 
manner  to  overpower  the  mind  of  the  victim,  so  that  she  dare  not 
resist,  is,  and  upon  all  sounH  principles  must  be,  regarded,  for  this 
purpose,  as  in  all  respects  equivalent  to  force  actually  exerted  for 
the  same  purpose.  See  Reg.  v.  Hallett,  9  C.  &  P.  748;  Reg.  v. 
Day,  Id.  722;  Wright  v.  State,  4  Humph.  (Tenn.)  194;  Pleasant 
v.  State,  8  Eng.  360.  And  see  Strang  v.  People,  24  Mich.  1.  Nor, 
as  appears  by  the  case  last  cited,  need  the  threats  be  of  force  to  be 
used  in  accomplishing  the  act,  as  in  that  case  the  principal  threat 
was  that,  if  she  refused,  he  would  take  her  away  where  she  could 
never  get  back.  In  fact,  we  think  the  terms  of  the  statute  in  refer- 
ence to  force  are  satisfied  by  any  sexual  intercourse  to  which  the 
woman  may  have  been  induced  to  yield  only  through  the  constraint 
produced  by  the  fear  of  great  bodily  harm,  or  danger  to  life  or  limb, 
which  the  prisoner  has,  for  the  purpose  of  overcoming  her  will, 
caused  her  to  apprehend  as  the  consequence  of  her  refusal,  and 
without  which  she  would  not  have  yielded.  _ 

It  remains  only  to  apply  these  principles  to  the  present  case. 

Considering  the  way  and  the  purpose  for  which  the  girl  had  been 
placed  by  her  father  under  the  care  and  treatment  of  the  defend- 
ant as  her  physician,  the  evidence  had  a  tendency  to  show,  and  the 
jury  might  properly  have  found,  that  the  girl  was  induced  by  the 
defendant  to  submit  to  the  sexual  intercourse  with  him  from  the 
fear  and  under  the  apprehension,  falsely  and  fraudulently  inspired 
by  the  defendant  for  the  purpose  of  overcoming  her  opposition,  that, 
if  she  did  not  yield  to  such  intercourse,  he  intended  to,  and  would, 
use  instruments  "for  the  purpose  of  enlarging  the  parts,"  and  that 
such  operation  with  instruments  would  be  likely  to  kill  her.  And 
if  the  jury  should  so  find — with  or  without  the  other  facts  submitted 
to  them  by  the  charge  given — and  that  she  would  not  otherwise 
have  yielded,  it  would  be  their  duty  to  find  the  defendant  guilty  of 
the  crime  charged. 

The  judgment  must  be  reversed,  and  a  new  trial  awarded. 

Campbell,  J.,  concurred. 

Coolly,  J.  As  my  Brethren  are  agreed  in  this  case,  I  concur  in 
the  result,  while  not  fully  assenting  to  all  that  is  expressed  in  the 
opinion. 

Graves,  J.,  did  not  sit  in  this  case.* 

«  Compare  Pomeroy  v.  State,  94  Ind.  96  (1S83). 


\ 


326  rape.  (Ch.  11 

REGINA  v.  FLATTERY. 

(Court  for  Crown  Cases  Reserved,  1S77.    2  Q.  B.  Div.  410.) 

Kelly,  C.  B.1  I  think  this  conviction  ought  to  be  affirmed.  Mr. 
Lockwood  has  ablv  argued  that  there  was  consent  on  the  part  of  the 
prosecutrix,  and  therefore  no  rape.  But,  on  the  case  as  stated,  it  is 
plain  that  the  girl  only  submitted  to  the  plaintiff's  touching  her  person 
in  consequence  of  the  fraud  and  false  pretenses  of  the  prisoner,  and 
that  the  only  thing  she  consented  to  was  the  performance  of  a  surgical 
operation.  Up  to  the  time  when  she  and  the  prisoner  went  into  the 
room  alone,  it  is  clearly  found  on  the  case  that  the  only  thing  con- 
templated either  by  the  girl  or  her  mother  was  the  operation  which 
had  been  advised.     Sexual  connection  was  never  thought  of  by  either 

i  The  statement  of  facts  and  the  concurring  opinions  of  Mellor,  Denman  and 
Field.  JJ.,  and  Huddleston,  B.,  are  omitted. 

"The  request  in  substance  is  as  follows:  That,  inasmuch  as  nonconsent  is 
to  be  proved  by  the  resistance  made,  therefore,  if  the  resistance  falls  short 
of  the  extremest  limit  that  could  have  been  made,  the  deficiency  necessarily 
shows  consent,  and  should  be  so  charged  as  matter  of  law.  The  fallacy  lies 
in  the  assumption  that  the  deficiency  in  such  cases  necessarily  shows  consent. 
If  the  failure  to  make  extreme  resistance  was  intentional,  in  order  that  the 
assailant  might  accomplish  his  purpose,  it  would  show  consent;  but  without 
such  intent  it  shows  nothing  important  whatsoever.  The  whole  question  is 
one  of  fact,  and  the  court  committed  no  error  in  so  leaving  it  to  the  jury." 
Park,  C.  J.,  in  State  v.  Shields,  45  Conn.  25G  (1877). 

At  common  law  a  boy  under  14  years  of  age  is  conclusively  presumed  to  be 
physically  incapable  of  committing  rape.  Reg.  v.  Waite,  L.  R.  2  Q.  B.  GOO 
(1892);  State  v.  Handy,  4  Har.  (Del.)  56G  (1845);  State  v.  Pugh,  52  N.  C.  61 
(1859) ;  Foster  v.  Commonwealth,  96  Va.  306,  31  S.  E.  503,  42  L.  R,  A.  589,  70 
Am.  St.  Rep.  846  (189S) ;  Chism  v.  State,  42  Fla.  232,  28  South.  399  (1900).  In 
some  jurisdictions  it  is  held  that  the  presumption  of  incapacity  may  be  re- 
butted. People  v.  Randolph,  2  Parker,  Cr.  R.  (N.  Y.)  174  (1S55) ;  lliltabiddle  v. 
State,  35  Ohio  St.  52,  35  Am.  Rep.  592  (1S7S) ;  Wagoner  v.  State,  5  Lea  (Tenn.) 
352,  10  Am.  Rep.  36  (1880);  Heilman  v.  Commonwealth,  S4  Ky.  457,  1  S.  W. 
731,  4  Am.  St.  Rep.  207  (1886)  :  Gordon  v.  State,  93  (la.  531,  21  S.  E.  54,  44  Am. 
St  Rep.  189  (1893).  In  Louisiana  there  is  no  presumption  as  to  physical  ca- 
pacity.     State  v.  Junes,  39  La.  Ann.  935,  3  South.  57  (1887). 

On  an  Indictment  under  a  statute  providing:  "If  any  person  shall  unlaw- 
fully and  carnally  know  any  woman  child  under  the  age  of  fourteen  years, 
every  such  unlawful  and  carnal  knowledge  shall  be  felony,  and  the  offender 
thereof  Bhall  suffer  as  for  rape" — It  was  held  that  no  presumption  of  Incapacity 
to  COmmil  the  offense  arose  from  the  fad  thai  the  defendant  was  under  14 
years  of  age.  State  v.  Coleman,  54  S.  0,  L62,  31  S.  B.  866  (1899).  Cf.  McKinny 
v.  State,  '-".•  Fla.  565,  LO  Smith.  732,  30  Am.  St.  Rep.  140  (1892). 

Penetration  alone,  force  and  nonconsent  being  proven,  is  sufficient  both  by 
the  early  common  law  (see  l  Bast,  P.  0.  436;  Pennsylvania  v.  Sullivan,  Add. 
[Pa.]  143  [1793];  Comstock  v.  state,  n  Neb.  205,  15  N.  W.  355  [1883];  con- 
tra Blackburn  v.  State,  22  Ohio  St.  102  [1871]),  and  by  Btatute  In  England 
and  most  statt  24  &  25  Vict  c.  100,  §  63;  Waller  v.  state,  40  Ala.  .".'_>"' 

[18671;  Ellia  v.  State,  25  Fla.  702,  6  South.  768  [1889];  Taylor  v.  Slate.  Mi 
ind.  279,  12  N.  B.  100  [1887];  State  v.  Hargrave,  65  N.  0.  466  [1871];  People 
v.  Crowley,  102  N.  v   234,  6  N.  B.  884  [1886]. 

The  crime  of  rape  is  not  committed  If  the  woman  consent  after  the  assault, 
lmt  before  penetration.  Reg.  v.  Ballet,  9  0.  &  P.  748  (1841);  Smith  v.  state, 
L2  Ohio  st.  466,  80  Am  Dec  ::;-,:,  (1861);  state  v.  Cunningham,  100  Mo.  382, 
12  s  w.  :',7<;  (1890).  Otherwise,  if  sin-  consent  only  after  penetration,  state 
v.  Welch,  193  Mo.  179,  89  s.  \v.  945  (1905). 


RAPE.  327 

of  them.  And  after  she  was  in  the  room  alone  with  the  prisoner, 
what  the  case  expressly  states  is  that  the  girl  made  but  feeble  re- 
sistance, believing  that  she  was  being  treated  medically,  and  that  what 
was  taking  place  was  a  surgical  operation.  In  other  words,  she  sub- 
mitted to  a  surgical  operation,  and  nothing  else.  It  is  said,  however, 
that  having  regard  to  the  age  of  the  prosecutrix,  she  must  have  known 
the  nature  of  sexual  connection.  I  know  no  ground  in  law  for  such 
a  proposition;  and,  even  if  she  had  such  knowledge,  she  might  sup- 
pose that  penetration  was  being  effected  with  the  hand  or  with  an 
instrument.  The  case  is,  therefore,  not  within  the  authority  of  those 
cases  which  have  decided — decisions  which  I  regret — that,  where  a 
man  by  fraud  induces  a  woman  to  submit  to  sexual  connection,  it  is 
not  rape. 

Conviction  affirmed. 


STATE  v.  HAINES. 

(Supreme  Court  of  Louisiana,  1899.    51  La.  Ann.  731,  25  South.  372,  44  L.  R. 

A.  837.) 

Blanchard,  J.  The  case  stands  thus :  (1)  Thibodeaux  exonerated 
from  the  charge  by  the  verdict  of  not  guilty  as  to  him.  (2)  Haines 
declared,  by  the  verdict  of  guilty  as  to  him,  to  have  committed  the 
crime  of  rape  upon  Rose  Moreaux.  (3)  Rose  Moreaux  was,  at  the 
time  of  the  act,  the  wife  of  Haines.  We  are  constrained  to  hold  that 
this  conviction  cannot  stand.  The  case  as  to  Haines  fell  with  the  ac- 
quittal of  Thibodeaux.  It  would  be  different  if  Haines  had  forced 
Thibodeaux  by  threats  and  violence,  against  his  will  and  consent,  to 
have  sexual  intercourse  with  the  wife,  who,  herself,  through  menace 
and  coercion  exerted  on  the  part  of  her  husband,  had  been  forced  to 
yield.  In  such  case,  the  husband  alone  might  well  be  found  guilty  of 
the  crime,  and  his  unwilling  instrument  of  its  accomplishment  ac- 
quitted.1 

i  Part  of  this  case  is  omitted. 

"We  are  aware  of  no  case  holding  that  the  husband  can  be  guilty  of  the 
offense  when  he  himself  is  the  actual  party  to  the  intercourse."  Davidson,  P 
J.,  in  Frazier  v.  State  (Tex.  Cr.  App.)  86  S.  W.  754  (1905) 


328  homicide.  (Ch.  12 

CHAPTER  XII. 
HOMICIDE. 


SECTION  1.— GENERAL  PRINCIPLES. 
I.  The  Several  Kinds  of  Homicide. 


Homicide  is  the  killing  of  a  man  done  by  a  man,  for  if  it  be  done 
by  an  ox,  a  dog,  or  other  thing,  it  is  not  properly  termed  homicide. 
For  homicide  is  so  termed  from  "homine"  and  "csedo,"  as  it  were  the 
slaying  of  a  man. 

Bracton,  f.  120  b. 

Homicide,  properly  so  called,  is  either  against  a  man's  own  life  or 
that  of  another.     *     *     * 

As  to  the  first  point,  viz. :  In  what  case  a  man  shall  be  said  to  be 
felo  de  se.  *  *  *  Our  laws  have  always  had  such  an  abhorrence 
of  this  crime,  that  not  only  he  who  kills  himself  with  a  deliberate  and 
direct  purpose  of  so  doing,  but  also  in  some  cases  he  who  maliciously 
attempts  to  kill  another,  and  in  pursuance  of  such  attempt  unwilling- 
ly kills  himself,  shall  be  adjudged  in  the  eye  of  the  law  a  felo  de  se. 

1  Hawkins,  P.  C.  c.  9. 

Homicide  against  the  life  of  another  amounts  to  felony,  or  does 
not.  That  which  amounts  not  to  felony  is  either  justifiable,  and  caus- 
es no  forfeiture  at  all,  or  excusable,  and  causes  the  forfeiture  of  the 
party's  goods. 

Of  justifiable  homicide  I  shall  premise  these  general  rules: 

First.  It  must  be  owing  to  some  unavoidable  necessity  to  which 
the  person  who  kills  another  must  be  reduced  without  any  manner  of 
fault  in  himself. 

Secondly.  There  must  be  no  malice  colored  under  pretense  of  ne- 
cessity; for  wherever  a  person  who  kills  another  acts  in  truth  upon 
malice,  and  takes  occasion  from  the  appearance  of  necessity,  to  exe- 
cute his  own  private  revenge,  he  is  guilty  of  murder.     *     *     * 

Justifiable  homicide  is  either  of  a  public  or  of  a  private  nature. 
Justifiable  homicide  of  a  public  nature  is  such  as  is  occasioned  by 
the  due  execution  or  advancement  of  public  justice.  That  of  a  private 
nature  is  such  as  happens  in  the  just  defense  of  a  man's  person,  house, 
or  goods. 

Id.  c.  10. 


Sec.  1)  GENERAL   PRINCIPLES.  329 

Excusable  homicide  is  either  per  infortuniam,  or  se  defendendo. 
*     *     * 

Homicide  per  infortuniam,  or  by  misadventure,  is  where  a  man  in 
doing  a  lawful  act,  without  any  intent  of  hurt,  unfortunately  chances 
to  kill  another.     *     *     * 

Homicide  se  defendendo  seems  to  be  where  one,  who  has  no  other 
possible  means  of  preserving  his  life  from  one  who  combats  with  him 
on  a  sudden  quarrel,  or  of  defending  his  person  from  one  who  at- 
tempts to  beat  him  (especially  if  such  attempt  be  made  upon  him  in 
his  own  house),  kills  the  persons  by  whom  he  is  reduced  to  such  an 
inevitable  necessity.     *     *     * 

Thus  far  of  each  kind  of  excusable  homicide  distinctly  considered 
— and  now  I  am  to  consider  those  properties  wherein  they  both  agree. 

And  first,  it  seems  clear  that  neither  of  these  homicides  are  felonies, 
because  they  are  not  accompanied  with  a  felonious  intent,  which  is 
necessary  in  every  felony.1 

And  from  hence  it  seems  plainly  to  follow,  that  they  were  never 
punishable  with  loss  of  life;  and  the  same  also  further  appears  from 
the  writ  odio  et  atia,  by  virtue  whereof,  if  any  person  committed  for 
killing  another  were  found  guilty  of  either  of  these  homicides,  and 
no  other  crime,  he  might  be  bailed ;  and  indeed  it  seems  to  be  against 
natural  justice  to  condemn  a  man  to  death  for  what  is  owing  rather 
to  his  misfortune  than  his  fault.     *     *     * 

Thirdly,  it  is  also  agreed,  that  no  one  can  excuse  the  killing  another, 
by  setting  forth  in  a  special  plea  that  he  did  it  by  misadventure,  or 
se  defendendo,  but  that  he  must  plead  not  guilty,  and  give  the  special 
matter  in  evidence.  And  that  whenever  a  person  is  found  guilty  of 
such  homicide  *  *  *  he  shall  be  discharged  out  of  prison  upon 
bail,  and  forfeit  his  goods,  but  that  upon  removing  the  record  by  cer- 
tiorari into  chancery,  he  shall  have  his  pardon  of  course,  without 
staying  for  any  warrant  from  the  king  to  that  purpose,  as  shall  be 
more  fully  shown  in  the  second  book. 

Id.  c.  11. 


II.  The  Subject  of  Homicide. 

If  there  be  some  one,  who  has  struck  a  pregnant  woman,  or  has 
given  her  poison,  whereby  he  has  caused  abortion,  if  the  foetus  be 
already  formed  and  animated,  and  particularly  if  it  be  animated,  he 
commits  homicide. 

Bracton,  f.  120  b. 

If  a  woman  be  quick  with  child  and  by  a  potion  or  otherwise  killeth 
it  in  her  womb ;   or  if  a  man  beat  her,  whereby  the  child  dieth  in  her 

1  Roger  of  Stainton  was  arrested  because  in  throwing  a  stone  he  by  misad- 
renture  killed  a  girl.  And  it  is  testified  that  this  was  not  by  felony.  And  this 
was  shown  to  the  king,  and  the  king  moved  by  pity  pardoned  him  the  death. 
So  let  him  be  set  free.    See  Sel.  P.  C.  (Sel.  Soc.)  pi/ 114  (1214). 


330  homicide.  (Ch.  12 

body,  and  she  is  delivered  of  a  dead  child,  this  is  a  great  misprision, 
and  no  murder;  but  if  the  child  be  born  alive,  and  dieth  of  the  po- 
tion, battery  or  other  cause,  this  is  murder  ;x  for  in  law  it  is  accounted 
a  reasonable  creature,  in  rerum  natura  when  it  is  born  alive.2  And 
the  book  in  1  Edw.  Ill  was  never  holden  for  law.  And  3  Ass.  p.  2, 
is  but  a  repetition  of  that  case.  And  so  horrible  an  offense  should 
not  go  unpunished  *  *  *  and  herewith  agreeth  Fleta;  and  here- 
in the  law  is  grounded  upon  the  law  of  God.  *  *  *  If  a  man 
counsel  a  woman  to  kill  the  child  within  her  womb,  when  it  shall  be 
born,  and  after  she  is  delivered  of  the  child,  she  killeth  it,  the  coun- 
sellor is  an  accessory  to  the  murder,  and  yet  at  the  time  of  the  com- 
mandment, or  counsel,  no  murder  could  be  committed  of  the  child 
in  utero  matris ;  the  reason  of  which  case  proveth  well  the  other  case. 
3  Coke,  Inst.  50. 


REX  v.  BRAIN. 

(Oxford  Assizes,  1834.    6  Car.  &  P.  349.) 

Murder.  The  prisoner  was  indicted  for  the  murder  of  her  male 
bastard  child. 

It  appeared  that  the  prisoner  had  been  delivered  of  a  child  at  Sand- 
ford  Ferry,  and  that  the  body  of  the  child  was  afterwards  found  in 
the  water,  about  15  feet  from  the  lock  gate,  near  the  ferry  house; 
but  it  was  proved  by  two  surgeons,  Mr.  Box  and  Mr.  Hester,  that 
the  child  had  never  breathed. 

Park.  T.  (in  surngiiiig-jip).  A  child  must  be  actually  wholly  in 
the  world  in  a  living  state  to  be  the  subject  of  a  charge  of  murder; 
but  if  it  has  been  wholly  born,  and  is  alive,  it  is  not  essential  that  it 
should  have  breathed  at  the  time  it  was  killed,  as  many  children  are 
born  alive,  and  yet  do  not  i  reathe  for  some  time  after  their  birth. 
But  you  must  be  satisfied  that  the  child  was  wholly  born  into  the  world 
at  the  time  it  was  killed,  or  you  ought  not  to  find  the  prisoner  guilty 
of  murder.  This  is  not  only  my  opinion,  but  the  law  was  so  laid  down 
in  a  case  as  strong  as  this,  by  a  very  learned  Judge  (Mr.  Justice  Lit- 
tledale)  at  the  Old  Bailey.  [His  Lordship  read  the  case  of  Rex  v. 
Poulton,  5  Car.  &  P.  329.] 

\  erdict — Not  guilty  of  murder,  but  guilty  of  concealment. 

'  A.  cord:     Clarke  v.  State,  117  Ala.  1,  23  South.  G71,  G7  Am.  St.  Rep.  157 

(1898). 

Lord  Ooke  cites  the  above  quotation  from  Bracton  as  authority  tor  thi* 
statement;  Bed  qu.  Blackstone  Bays:  "To  kill  a  child  In  its  mother's  womb 
is  now  do  murder,  but  a  greal  misprision."  And  in  Sel.  P.  C.  (Sel,  Boc.)  pi. 
26,  la  an  appeal  In  the  year  1202  for  beating  a  woman  so  as  to  kill  the  child 
In  her  womb.  ,  .  ..  .. 

"The  conclusion  is  fairly  deducible  from  certain  portions  of  the  testimony 
thai  an  attempl  waa  made  to  Mil  the  girl  by  the  admlnlatratlon  of  cocaine 
xvi,ii,.  J,,  Cincinnati,  and  thai  this  waa  'lone  by  the  defendanl  or  a1  ins, 
Instance   bul  thai  she  was  ool  thereby  killed,    it  is  to  be  remembered  that, 


Seel)  GENERA*.  PRINCIPLES.  331 

III.   The  Act  Causing  Death. 

Not  only  he  who  by  a  wound  or  blow,  or  by  poisoning,  strangling 
or  famishing,  etc.,  directly  causes  another's  death,  but  also  in  many 
cases  he  who  by  wilfully  and  deliberately  doing  a  thing  which  ap- 
parently endangers  another's  life,  thereby  occasions  his  death,  shall 
be  adjudged  to  kill  him. 

And  such  was  the  case  of  him  who  carried  his  sick  father,  against 
his  will,  in  a  cold  frosty  season,  from  one  town  to  another,  by  rea- 
son whereof  he  died.  Pult.  122. 

Such  also  was  the  case  of  the  harlot,  who  being  delivered  of  a  child, 
left  it  in  an  orchard,  covered  only  with  leaves,  in  which  condition  it 
was  struck  by  a  kite,  and  died  thereof.     Crom.  24. 

And  in  some  cases  a  man  shall  be  said,  in  the  judgment  of  the  law, 
to  kill  one  who  is  in  truth  actually  killed  by  another,  or  by  himself ; 
as  where  one  by  duress  or  imprisonment  compels  a  man  to  accuse 
an  innocent  person,  who  on  his  evidence  is  condemned  and  executed ; 
or  where  one  incites  a  madman  to  kill  himself  or  another ;  or  where 
one  lays  poison  with  an  intent  to  kill  one  man,  which  is  afterwards 
accidently  taken  by  another,  who  dies  thereof.  Plowd.  474.  Also 
he  who  wilfully  neglects  to  prevent  a  mischief,  which  he  may  and 
ought  to  provide  against,  is,  as  some  have  said,  in  judgment  of  the 
law,  the  actual  cause  of  the  damage  which  ensues;  and,  therefore 
if  a  man  have  an  ox  or  a  horse,  which  he  knows  to  be  mischievous, 
by  being  used  to  gore  or  strike  at  those  who  come  near  them,  and  do 
not  tie  them  up,  but  leave  them  to  their  liberty,  and  they  afterwards 
kill  a  man,  according  to  some  opinions,  the  owner  may  be  indicted 
as  having  himself  feloniously  killed  him,  and  this  is  agreeable  to  the 
Mosaical  law. 

However,  it  is  agreed  by  all,  such  a  person  is  certainly  guilty  of 
a  very  gross  misdemeanor. 

Also  it  is  agreed,  that  no  person  shall  be  adjudged  by  any  act  what- 
ever to  kill  another  who  doth  not  die  thereof  within  a  year  and  a  day 

according  to  the  testimony  of  Jackson,  he  did  not  see  the  girl  In  life  after 
Wednesday,  and,  according  to  Walling,  he  did  not  see  her  after  that  day; 
but  the  proof  conduces  to  show  that  they  were  both  with  her  Friday  night, 
when  she  was  in  the  cab,  and  that  they  brought  her  over  to  Campbell  county. 
If  she  was  then  dead  as  might  be  supposed  from  her  making  no  outcry,  a 
verdict  of  guilty  could  not  have  been  rendered ;  but  if  she  was  then  alive, 
though  appearing  to  be  dead,  and  by  the  cutting  of  her  throat  she  was  killed 
while  in  Campbell  county,  then  the  jury  might  find  a  verdict  of  guilty,  al- 
though the  cutting  off  of  the  head  was  merely  for  the  purpose  of  destroying  the 
chances  for  identification  or  for  any  other  purpose.  At  least  the  instruction 
does  not  authorize  a  verdict  of  conviction  unless  Jackson  is  shown  to  have 
cut  off  the  head  of  his  victim  in  Campbell  county,  and  while  she  was  in  fact 
alive;  and  if  he  did  this  he  was  guilty  of  murder,  though  believing  her  al- 
ready dead,  if  the  act  succeeded  and  was  but  a  part  of  the  felonious  attempt 
to  kill  her  in  Cincinnati."  Hazelrigg,  J.,  in  Jackson  v.  Commonwealth,  100 
Ky.  239,  38  S.  W.  422,  1091,  66  Am.  St.  Rep.  336  (1S96). 


332  homicide.  (Ch.  12 

after;  in  the  computation  whereof,  the  whole  day  on  which  the  hurt 
was  done  shall  be  reckoned  the  first. 

But  if  a  person  hurt  by  another  die  thereof  within  a  year  and  a 
day,  it  is  no  excuse  for  the  other  that  he  might  have  recovered  if  he 
had  not  neglected  to  take  care  of  himself. 

1  Hawkins,  P.  C.  c.  13. 


GORE'S  CASE. 

(King's  Bench,  1611.    9  Coke,  81.) 

Before  Fleming,  Chief  Justice,  and  Tanfield,  Chief  Baron,  Justices 
of  Assize,  this  case  happened  in  their  Western  circuit.  Agnes,  the 
daughter  of  Roper,  married  one  Gore.  Gore  fell  sick.  Roper,  the 
father,  in  good  will  to  the  said  Gore,  his  son-in-law,  went  to  one  Dr- 
Gray,  a  physician,  for  his  advice,  who  made  a  receipt  directed  to  one 
Martin,  his  apothecary,  for  an  electuary  to  be  made,  which  the  said 
Martin  did,  and  sent  it  to  the  said  Gore.  Agnes,  the  wife  of  Gore, 
secretly  mixed  ratsbane  with  the  electuary,  to  the  intent  therewith  to 
poison  her  husband,  and  afterwards,  18  Maii,  she  gave  part  of  it  to 
her  husband,  who  eat  thereof  and  immediately  became  grievously 
sick;  the  same  day  Roper,  the  father,  eat  of  it,  and  immediately  also 
became  sick,  19  Maii  C.  eat  part  of  it  and  he  likewise  fell  sick;  but 
they  all  recovered  and  yet  are  alive.  The  said  Roper,  observing  the 
operation  of  the  said  electuary,  carried  the  said  box  with  said  electuary, 
21  Maii,  to  the  said  Gray,  the  physician,  and  informed  him  of  the  said 
accidents,  who  sent  for  the  said  Martin,  the  apothecary,  and  asked 
him  if  he  had  made  the  said  electuary  according  to  his  direction,  who 
answered  that  he  had,  in  all  things  but  in  one,  which  he  had  not  in 
his  shop,  but  put  in  another  thing  of  the  same  operation,  which  the 
said  Doctor  Gray  well  approved  of,  whereupon  Martin,  the  apothe- 
cary, said,  "To  the  end  you  may  know  that  I  have  not  put  anything 
in  it,  which  I  myself  will  not  eat,  I  will  here  before  you  eat  part  of 
it,"  and  thereupon  Martin  took  the  box,  and  with  his  knife  mingled 
and  stirred  together  the  said  electuary,  and  took  and  eat  part  of  it, 
of  which  he  died  the  22d  day  of  May  following.  The  question  was, 
if  upon  all  this  matter  Agnes  had  committed  murder.  And  this  case 
was  delivered  in  writing  to  all  the  Judges  of  England  to  have  their 
opinions  in  the  case.  And  the  doubt  was,  because  Martin  himself 
of  his  own  head,  without  incitation  or  procurement  of  any,  not  only 
eat  of  the  said  electuary,  but  he  himself  mingled  and  stirred  it  to- 
gether, which  mixing  and  stirring  had  so  incorporated  the  poison  with 
tin-  electuary,  that  it  made  the  operation  more  forcible  than  the  mixture 
which  the  said  Ague,  had  made;  for,  notwithstanding  the  mixture 
which  Agnes  had  made,  those  who  eat  of  it  were  sick,  but  yet  alive, 
but   the   mixture   which    Martin   has   made   by   mingling  and   stirring. 


Sec.  1)  GENERAL   PRINCIPLES.  333 

it  with  his  knife,  made  the  operation  of  the  poison  more  forcible,  and 
was  the  occasion  of  his  death.  And  if  this  circumstance  would  make 
a  difference  between  this  case  and  Saunders'  Case  in  Plow.  Com. 
474,  was  the  question. 

And  it  was  resolved  by  all  the  Judges  that  the  said  Agnes  was 
guilty  of  the  murder  of  the  said  Martin,  for  the  law  conjoins  the  mur- 
derous intention  of  Agnes  in  putting  the  poison  into  the  electuary  to 
kill  her  husband,  with  the  event  which  thence  ensued ;  sc.  the  death 
of  the  said  Martin ;  for  the  putting  of  the  poison  into  the  electuary 
is  the  occasion  and  cause ;  and  the  poisoning  and  death  of  the  said 
Martin  is  the  event,  quia  eventus  est  qui  ex  causa  sequitur,  et  di- 
cuntur  eventus  quia  ex  causis  eveniunt,  and  the  stirring  of  the  electu- 
ary by  Martin  with  his  knife  without  the  putting  in  of  the  poison  by 
Agnes  could  not  have  been  the  cause  of  his  death. 

And  it  was  also  resolved,  that  if  A.  puts  poison  into  a  pot  of  wine, 
etc.,  to  the  intent  to  poison  B.  and  sets  it  in  a  place  where  he  supposes 
B.  will  come  and  drink  of  it,  and  by  accident  C.  (to  whom  A.  has  no 
malice)  comes,  and  of  his  own  head  takes  the  pot  and  drinks  of  it, 
of  which  poison  he  dies,  it  is  murder  in  A.,  for  the  law  couples  the 
event  with  the  intention,  and  the  end  with  the  cause ;  and  in  the  same 
case  if  C,  thinking  that  sugar  is  in  the  wine,  stirs  it  with  a  knife, 
and  drinks  of  it,  it  will  not  alter  the  case,  for  the  king  by  reason  of 
the  putting  in  of  the  poison  with  a  murderous  intent,  has  lost  a  sub- 
ject ;  and  therefore  in  law  he  who  so  put  in  the  poison  with  an  ill 
and  felonious  intent,  shall  answer  for  it.  But  if  one  prepare  ratsbane 
to  kill  rats  and  mice,  or  other  vermin,  and  leaves  it  in  certain  places 
to  that  purpose,  and  with  no  ill  intent,  and  one  finding  it  eats  of  it, 
it  is  not  felony,  because  he  who  prepares  the  poison  has  no  ill  or 
felonious  intent;  but  when  one  prepares  poison  with  a  felonious  in- 
tent to  kill  any  reasonable  creature,  whatsoever  reasonable  creature 
is  thereby  killed,  he  who  has  the  ill  and  felonious  intent  shall  be 
punished  for  it,  for  he  is  as  great  an  offender,  as  if  his  intent  against 
the  other  person  had  taken  effect.  And  if  the  law  should  not  be  such, 
this  horrible  and  heinous  offense  would  be  unpunished,  which  would 
be  mischievous  and  a  great  defect  in  the  law. 


REX  v.  REW. 

(Newgate  Sessions,  1662.    Kelyng,  26.) 

Edward  Rew  was  indicted  for  killing  Nathaniel  Rew,  his  brother, 
and  upon  the  evidence  it  was  resolved  that  if  one  gives  wounds  to 
another,  who  neglects  the  cure  of  them,  or  is  disorderly,  and  doth  not 
keep  that  rule  which  a  person  wounded  should  do,  yet  if  he  die  it  is 
murder  or  manslaughter,  according  as  the  case  is  in  the  person  who 


- 
- 

334  homicide.  (Ch.  12 

gave  the  wounds,  because  if  the  wounds  had  not  been,  the  man  had 
not  died ;  and  therefore  neglect  or  disorder  in  the  person  who  re- 
ceived the  wounds  shall  not  excuse  the  person  who  gave  them.1 


REX  v.  HUGGINS. 

(King's  Bench,  1730.    2  Ld.  Raym.  1574.) 

This  was  a  special  verdict  found  at  the  Old  Bailey  on  an  indict- 
ment of  murder  against  James  Barnes  and  John  Huggins.  The 
jury  found  that  Huggins  was  warden  of  the  prison  of  the  Fleet,  that 
Thomas  Gibbons  was  deputy  of  Huggins  and  that  Barnes  was  the 
servant  of  Gibbons  and  had  the  care  of  the  prisoners  committed  to 
the  said  prison.  They  further  found  that  Edward  Arne  having  been 
committed  to  the  said  prison,  was,  without  his  consent,  placed  by 
said  Barnes  for  forty  days  in  a  room  of  the  prison  newly  built,  the 
walls  of  which  were  very  damp.  That  said  room  was  situate  over 
the  common  sewer  of  the  prison  and  near  the  place  where  the  refuse 
of  the  prison  was  usually  put,  by  reason  whereof  the  room  was 
very  unwholesome  and  dangerous  to  the  life  of  any  person  detained 
therein. 

That  the  said  Arne  was,  without  his  consent,  detained  by  the 
said  Barnes  in  the  said  room  for  forty  days  without  fire,  or  chamber 
pot,  close-stool  or  any  such  utensil,  all  of  which  the  said  Barnes  well 
knew;  and  that  by  the  said  duress  the  said  Arne  languished  and  died.2 

The  record,  the  indictment  and  special  verdict  being  removed 
into  the  King's  Bench  and  argued  before  all  the  twelve  judges, 

The  Lord  Chief  Justice  delivered  the  opinion  of  the  judges. 

In  this  case  two  questions  have  been  made:  (1)  What  crime 
the  facts  found  upon  Barnes  in  the  special  verdict  will  amount  to? 
i  2 )  Whether  the  prisoner  at  the  bar  is  found  guilty  of  the  same 
;  fence  with  Barnes? 

1.  As  to  the  first  question,  it  is  very  plain,  that  the  facts  found 
upon  Barnes  do  amount  to  murder  in  him.  Murder  may  be  com- 
mitted without  any  stroke.  The  law  has  not  confined  the  offence 
to  anv  particular  circumstances  or  manner  of  killing;  but  there  are 
as  many  ways  to  commit  murder,  as  there  are  to  destroy  a  man. 
provided  the  act  be  done  with  malice,  either  express  or  implied.  Hale 
1'.  C,  16,  3  Inst.  52. 

i  Accord:  Refusing  to  ;i]i<>w  amputation,  Hopkins  v.  u.  s..  4  App.  D.  C. 
130  (1894);  1 1 1 « -  refusal  nol  being  such  gross  neglect  as  t<>  bring  the  case 
Within  artldi  '..  <>f  the  Penal  Code,  Franklin  v.  State,  41  Tex.  Or.  R.  21, 

:,1  s.  W.  951  (1899). 

2  Purt  of  this  case  is  omitted* 


/•,,(, 


Sec.  1) 


GENERAL    PRINCIPLES. 


REGINA  v.  TOWERS. 


335 


(Court  of  Criminal  Appeals,  1874.    12  Cox,  Cr.  Cas.  530.) 

Wilson  Towers  was  charged  with  the  manslaughter  of  John 
Hetherington,  at  Castlesowerby,  on  the  6th  of  September,  1873. 

The  prisoner,  who  had  been  drinking  on  the  4th  of  August,  went 
into  a  public  house  at  New  Yeat,  near  Castlesowerby,  kept  by  the 
mother  of  the  deceased,  and  there  saw  a  girl  called  Fanny  Glaister 
nursing  the  deceased  child,  who  was  then  only  about  four  months 
and  a  half  old,  having  been  born  on  the  20th  of  March,  1873.  The 
prisoner,  who  appeared  to  have  had  some  grievance  against  Fanny 
Glaister  about  her  hitting  one  of  his  children,  immediately  on  entering 
the  public  house  went  straight  up  to  where  she  was,  took  her  by  the 
hair  of  the  head,  and  hit  her.  She  screamed  loudly,  and  this  so 
frightened  the  infant  that  it  became  black  in  the  face,  and  ever  since 
that  day,  up  to  its  death,  it  had  convulsions  and  was  ailing  generally 
from  a  shock  to  the  nervous  system.  The  child  was  previously  a 
very  healthy  one.1 

Denman,  J.,  in  summing  up,  said:  It  was  a  very  unusual  case, 
and  it  was  very  unusual  indeed  to  find  a  case  in  which  they  got  prac- 
tically no  assistance  from  previously  decided  cases.  There  was  no 
offense  known  to  our  law  so  various  in  its  circumstances,  and  so 
various  in  the  considerations  applicable  to  it,  as  that  of  manslaugh- 
ter. It  might  be  that  in  this  case,  unusual  as  it  was,  on  the  principle 
of  common  law,  manslaughter  had  been  committed  by  the  prisoner. 
The  prisoner  committed  an  assault  on  the  girl,  which  is  an  unlaw- 
ful act,  and  if  that  act,  in  their  judgment,  caused  the  death  of  the 
child — i.  e.,  that  the  child  would  not  have  died  but  for  that  assault  \ 
— they  might  find  the  prisoner  guilty  of  manslaughter.  He  called 
their  attention  to  some  considerations  that  bore  some  analogy  to 
this  case.  This  was  one  of  the  new  cases  to  which  they  had  to 
apply  old  principles  of  law.  It  was  a  great  advantage  that  it  was 
to  be  settled  by  a  jury,  and  not  by  a  judge.  If  he  were  to  say,  as 
a  conclusion  of  law,  that  murder  could  not  have  been  caused  by  such 
an  act  as  this,  he  might  have  been  laying  down  a  dangerous  pre- 
cedent for  the  future;  for,  to  commit  a  murder,  a  man  might  do 
the  very  same  thing  this  man  had  done.  They  could  not  commit 
murder  upon  a  grown-up  person  by  using  language  so  strong,  or  so  vio- 
lent, as  to  cause  that  person  to  die.  Therefore  mere  intimidation, 
causing  a  person  to  die  from  fright  by  working  upon  his  fancy,  was 
not  murder. 

But  there  were  cases  in  which  intimidations  had  been  held  to  be 
murder.  If,  for  instance,  four  or  five  persons  were  to  stand  round 
a  man,  and  so  threaten  him  and  frighten  him  as  to  make  him  be- 
lieve that  his  life  was  in  danger,  and  he  were  to  back  away  from  them 


i  Part  of  the  opinion  is  omitted. 


336  homicide.  (Ch.  12 

and  tumble  over  a  precipice  to  avoid  them,  then  murder  would 
have  been  committed.  Then  did,  or  did  not,  this  principle  of  law 
apply  to  the  case  of  a  child  of  such  tender  years  as  the  child  in  ques- 
tion? For  the  purposes  of  the  case  he  would  assume  that  it  did  not; 
for  the  purposes  of  to-day  he  should  assume  that  the  law  about  work- 
ing upon  people  by  fright  did  not  apply  to  the  case  of  a  child  of 
such  tender  years  as  this.  Then  arose  the  question,  which  would 
be  for  them  to  decide,  whether  this  death  was  directly  the  result  of 
the  prisoner's  unlawful  act — whether  they  thought  that  the  prisoner 
might  be  held  to  be  the  actual  cause  of  the  child's  death,  or  whether 
they  were  left  in  doubt  upon  that  upon  all  the  circumstances  of  the 
case.  After  referring  to  the  supposition  that  the  convulsions  were 
brought  on  owing  to  the  child  teething,  he  said  that,  even  though 
the  teething  might  have  had  something  to  do  with  it,  yet  if  the  man's 
act  brought  on  the  convulsions,  or  brought  them  to  a  more  danger- 
ous extent,  so  that  death  would  not  have  resulted  otherwise,  then  it 
would  be  manslaughter.  If,  therefore,  the  jury  thought  that  the 
act  of  the  prisoner  in  assaulting  the  girl  was  entirely  unconnected 
with  it,  that  the  death  was  not  caused  by  it,  but  by  a  combination 
of  circumstances,  it  would  be  accidental  death,  and  not  manslaughter.2 
Not_£uilty. 


REX  v.  HICKMAN. 
(Shrewsbury  Assizes,  1831.     5  Car.  &  P.  151.) 

Manslaughter.  The  first  count  of  the  indictment  stated  the  death 
of  the  deceased  to  have  been  by  blows.'  The  second  count  stated, 
in  substance,  that  the  deceased,  John  Randell,  was  riding  on  horse- 
back, and  that  the  prisoner  made  an  assault  upon  him  and  struck 
him  with  a  stick,  and  that  the  deceased,  from  a  well-grounded  ap- 
prehension of  a  further  attack  upon  him,  which  would  have  endan- 
gered his  life,  sp_urrcd  on  his  horse,  whereby  it  became  frightened, 
and  threw  the  deceased  "Off,  giving  him  a  mortal  fracture,  etc. 

There  was  no  evidence  to  support  the  first  count,  and  it  appear- 
ed that  the  prisoner  and  the  deceased,  being  both  on  horseback,  had 
a  quarrel,  and  that  the  prisoner  struck  the  deceased  with  a  small 
stick,  and  that  he  rode  away  along  the  Holyhead  road,  the  prisoner 
riding  after  him,  and  that,  on  the  deceased  spurring  his  horse,  which 
was  a  young  one,  the  horse  winced  and  threw  him. 

Mr.  Justice  Park.  I  think  the  second  count  is  sufficiently  prov- 
ed. The  death  of  this  individual  was  clearly  caused  by  the  frighten- 
ing of  his  horse.  In  indictments  for  robbery,  terror  and  force  are 
always  both  stated,  but  it  is  sufficienl  to  prove  one  of  them.  How- 
mi  this  count,  it  is  not  stated  that  the  deceased  died  Of  any  blow. 
In  the  case  of  Rex  v.  Evans,  1  Russ.,  C.  &  M.  425,  it  was  held  that 

j  Sep.  niso,  Cox   v.  People,  80  N.  Y.  BOO  (1SS0). 


Sec.  1)  GENERAL   PRINCIPLES.  337 

if  the  death  of  the  deceased,  who  was  the  wife  of  the  prisoner,  was 
partly  occasioned  by  blows  and  partly  by  a  fall  out  of  a  window,  the 
wife  jumping  out  at  the  window  from  a  well-grounded  apprehen- 
sion of  further  violence  that  would  have  endangered  her  life,  the 
prisoner  was  as  much  answerable  for  the  consequence  of  the  fall, 
as  if  he  had  thrown  her  out  at  the  window  himself. 
Verdict — Guilty.1 


REGINA  v.   WEST. 
(Nottingham  Assizes,  1848.     2  Car.  &  K.  784.) 

Maule,  J.,  in  summing  up,  said:  The  -prisoner  is  charged  with 
murder;  and  the  means  stafed  are  that  the  prisoner  caused  the  pre- 
mature delivery  of  the  witness  Henson,  by  using  some  instrument 
for  the  purpose  of  procuring  abortion,  and  that  the  child  so  prema- 
turely born  was,  in  consequence  of  its  premature  birth,  so  weak  that 
it  died.  This,  no  doubt,  is  an  unusual  mode  of  committing  mur- 
der, and  some  doubt  has  been  suggested  by  the  prisoner's  counsel 
whether  the  prisoner's  conduct  amounts  to  that  offense;  but  I  am 
of  opinion  (and  I  direct  you  in  point  of  law)  that  if  a  persgn  in- 
tending to  procure  abortion  does  an  act  which  causes  a  child  to  be 
born  so  much  earlier  than  the  natural  time  that  it  is  born  in  a  state 
much  less  capable  of  living,  and  a'fterwaras  dies  in  consequence  of 
its  exposure  to  the  external  world,  the  person  who  by  her  miscon- 
duct so  bfings  the  child  into  the  world,  and  puts  it  thereby  in  a  sit- 
uation in  which  it  cannot  live,  is  guilty  of  murder.  The  evidence 
seems  to  show  clearly  that  the  death  of  the  child  was  occasioned  by 
its  premature  birth ;  and  if  that  premature  delivery  was  brought  on 
by  the  felonious  act  of  the  prisoner,  then  the  offense  is  complete. 
His  Lordship  then  read  the  evidence,  and,  in  conclusion,  said:  If 
the  child,  by  the  felonious  act  of  the  prisoner,  was  brought  into  the 
world  in  a  state  in  which  it  was  more  likely  to  die  than  it  would  have 
been  if  born  in  due  time,  and  did  die  in  consequence,  the  offense  is 
murder;  and  the  mere  existence  of  a  possibility  that  something 
might  have  been  done  to  prevent  the  death  would  not  render  it  less 
murder.  If,  therefore,  you  are  satisfied,  to  the  exclusion  of  any  rea- 
sonable doubt,  that  the  prisoner,  by  a  felonious  attempt  to  procure 
abortion,  caused  the  child  to  be  brought  into  the  world,  for  which 
it  was  not  then  fitted,  and  that  the  child  did  die  in  consequence  of 
its  exposure  to  the  external  world,  you  will  find  her  guilty.  If  you 
entertain  a  reasonable  doubt  as  to  the  facts,  you  will,  of  course,  find 
her  not  guilty. 

Verdict — Not  guilty. 

i  See,  also.  Reg.  v.  Pitts.  1  Car.  &  M.  284  (1842) ;  Reg.  v.  Halliday.  61  L.  T. 
Rep  701  (1889);  Thornton  v.  State.  107  Ga.  6S3.  3.°,  S.  E.  673  (1SS9).  Cf. 
Hendrlckson  v.  Commonwealth,  85  Ky.  281,  3  S.  W.  160,  7  Am.  St  ReD.  596 
(1887). 

Mik.Cb.L— 22 


538 


HOMICIDE. 


(Ch.  12 


REGINA  v.  GREENWOOD. 
(Liverpool  Assizes,  1857.    7  Cox.  C.  C.  40i.) 

The  prisoner  was  indicted  for  murder  and  rape  on  a  child  under  ten. 

It  appeared  from  the  evidence  that  the  prisoner  had  connection 
with  the  deceased,  and  that  it  was  afterwards  discovered  she  had 
the  venereal  disease. 

Wtp.tttm a t*  T.: '  told  the  jury  that  the  malice,  which  constitutes 
murder,  might  be  either  express  or  implied.  There  was  no  pretense 
in  this  case  that  there  was  any  malice  other  than  what  might  be  im- 
plied by  law.     There  were  five  questions  for  them  to  consider: 

First,  had  the  prisoner  connection  with  her? 

Secondly,  did  she  die  therefrom? 

Thirdly,  had  she  the  venereal  disease? 

Fourthly,  did  she  die  from  its  effects? 

Fifthly,  did  she  get  it  from  the  prisoner? 

If  they  were  of  opinion  that  the  prisoner  had  connection  with 
ner,  and  she  died  from  its  effects,  then  that  act  being,  under  the 
circumstances  of  this  case,  a  felony  in  point  of  law,  this  would,  of 
itself,  be  such  malice  as  would  justify  them  in  finding  him  guilty  of 
murder. 

The  jury  retired,  and  after  some  time  returned  into  court,  say- 
ing that  they  were  satisfied  that  he  had  connection  and  that  her  death 
resulted  therefrom,  but  were  not  agreed  as  to  finding  him  guilty  of 
murder. 

Wightman,  J.,  told  them  that,  under  these  circumstances,  it  was 
open  to  them  to  find  the  prisoner  guilty  of  manslaughter,  and  that 
they  might  ignore  the  doctrine  of  constructive  malice  if  they  thought 
fit. 

The  jury  found  a  verdict  of  manslaughter,  and  the  prisoner  was 
ordered  to  be  kept  in  penal  servitude  forTife. 


REGINA  v.  BENNETT. 
(Court  for  Crown  Cases  Reserved,  18"»8.     Bell,  1.) 

The  following  case  was  reserved  by  Willes,  J.: 

Willi. mi  Bennett  was  convicted  before  me  at  the  Old  Bailey,  on 
the   18th   of  August,   1858,  of  the  manslaughter  of  Sarah   Williams. 

The  substantial  question  is  whether  a  person  who  makes  fireworks. 
contrary  Eo  S'.  '-1  S  1"  Win.  HF,  c.  7,  is  indictable  For  manslaughter 
if  death  be  caused  by  a  fire  breaking  out  amongst  combustibles  in 
liis  p  i  ed  by  him,  and  in  the  course  of  use.   For  the 

purpose  of  his  business,  but  not  completely  made  into  fireworks  at 
the  time.1 

i  Part  of  the  statement,  rendered  Irrelevant  by  the  opinion  of  the  court,  is 
omitted. 


K»\<ru* 


Sec.  1)  GENERAL   PRINCIPLES.  330 

This  case  was  considered,  on  13th  November,  1858,  by  Cockburn, 
C.   J.,   and  Wightman,   Williams,   and   Willes,  JJ.,   and   Chan- 

NELL,   B. 

Martin  appeared  for  the  Crown,  and  Hardinge  Giffard  for  the 
prisoner. 

Cockburn,  C.  J.  It  appears  that  the  prisoner  kept  in  his  house 
a  quantity  of  fireworks,  but  that  circumstance  alone  did  not  cause 
the  fire  by  which  the  death  was  occasioned;  but,  the  fireworks  and 
the  combustibles  kept  by  the  defendant  for  the  purpose  of  his  busi- 
ness being-  in  the  house,  the  fire  was  caused  by  the  negligence  of  the 
defendant's  servants.  Can  it  be  contended  that,  under  such  circum- 
stances, the  defendant  is  criminally  responsible? 

Martin,  for  the  Crown.  The  explosive  nature  of  these  substances 
kept  by  the  defendant  in  such  a  place  is  to  be  considered;  and,  if 
the  keeping  of  the  fireworks  was  unlawful,  the  prisoner  would  be 
responsible  for  all  the  consequences  of  that  unlawful  act. 

Cockburn,  C.  J.  The  keeping  of  the  fireworks  in  the  house  by 
the  defendant  caused  the  death  only  by  the  superaddition  of  the 
negligence  of  some  one  else.  By  the  negligence  of  the  defendant's 
servants  the  fireworks  ignited,  and  the  house,  in  which  the  deceased 
was,  was  set  on  fire,  and  death  ensued.  The  keeping  of  the  fire- 
works may  be  a  nuisance,  and  if,  from  the  unlawful  act  of  the  de- 
fendant, death  had  ensued  as  a  necessary  and  immediate  conse- 
quence, the  conviction  might  be  upheld.  The  keeping  of  the  fire- 
works, however,  did  not  alone  cause  t*he  death.  Plus  that  act  of  the 
defendant,  there  was  the  negligence  of  the  defendant's  servants. 

Willes,  J.  The  fire  which  caused  the  death  did  not  happen  through 
any  personal  interference  or  negligence  of  the  defendant.  The 
keeping  of  the  fireworks  in  the  house  was  disconnected  with  the 
negligence  of  the  defendant's  servants  which  caused  the  fire. 

Cockburn,  C.  J.  The  view  which  we  all  take  of  the  case  is  that 
the  prisoner  cannot  be  convicted  Upon  ihese  tacts. 

Hardinge  Giffard.  for  the  prisoner,  was  not  called  upon  by  the 
court. 

Conviction  quashed.2 


REGINA  v.  BENGE. 

(Nisi  Prius,  1865.    4  Fost.  &  F.  504.) 

PicpTT,  B.,  said3  that,  assuming  culpable  negligence  on  the  part 
ofthe  prisoner  which  materially  contributed  to  the  accident,  it  would 
not  be  material  that  others  also  by  their  negligence  contributed  to 
cause  it.     Therefore  he  must  leave  it  to  the  jury  whether  there  was 

2  Compare  Reg.  v.  Poeock,  ante,  p.  131. 
«  Part  of  this  case  is  omitted. 


340  HOMICIDE.  (Ch.   12 

negligence  of  the  prisoner  which  had  been  the  substantial  cause  of  the 
accident.  In  summing  up  the  case  to  the  jury,  he  said  their  ver- 
dict must  depend  upon  whether  the  death  was  mainly  caused  by  the 
culpable  negligence  of  the  prisoner.  Was  the  accident  mainly  caus- 
ed by  the  taking  up  of  the  rails  at  a  time  when  an  express  train  was 
about  to  arrive,  was  that  the  act  of  the  prisoner,  and  was  it  owing 
to  culpable  negligence  on  his  part?  His  counsel  had  urged  that  it 
was  not  so,  because  the  flagman  and  engine  driver  had  been  guilty 
of  negligence  which  had  contributed  to  cause  the  catastrophe;  but 
they,  in  their  turn,  might  make  the  same  excuse,  and  so,  if  it  was 
valid,  no  one  could  be  criminally  responsible  at  all.  This  would  be 
an  absurd  and  unreasonable  conclusion,  and  showed  that  the  conten- 
tion of  the  prisoner's  counsel  could  not  be  sound.  Such  was  not  the 
right  view  of  the  law — that,  if  the  negligence  of  several  persons  at 
different  times  and  places  contributed  to  cause  an  accident,  any  one 
of  them  could  set  up  that  his  was  not  the  sole  cause  of  it.  It  was 
enough  against  any  one  of  them  that  his  negligence  was  the  substan- 
tial cause  of  it.  Now,  here  the  primary  cause  was  certainly  the 
taking  up  of  the  rails  at  a  time  when  the  train  was  about  to  arrive, 
and  when  it  would  be  impossible  to  replace  them  in  time  to  avoid 
the  accident.  And  this  the  prisoner  admitted  was  owing  to  his  own 
mistake.  Was  that  mistake  culpable  negligence,  and  did  it  mainly 
or  substantially  cause  the  accident?  The  book2  was  clearly  and 
plainly  printed,  and  must  have  been  read  carelessly  to  admit  of  such 
a  mistake.  Was  it  not  the  duty  of  the  prisoner,  who  knew  the  fear- 
ful consequences  of  a  mistake,  to  take  reasonable  care  to  be  correct? 
And  had  he  taken  such  care?  Then,  as  to  its  being  the  main  cause 
of  the  accident,  it  was  true  that  the  company  had  provided  other 
precautions  to  avoid  any  impending  catastrophe,  and  that  these  were 
not  observed  upon  this  occasion ;  but  was  it  not  owing  to  the  pris- 
oner's culpable  negligence  that  the  accident  was  impending,  and.  if 
so,  did  his  negligence  the  less  cause  it  because,  if  other  persons 
had  not  been  negligent,  it  might  possibly  have  been  avoided? 
Verdict— Guilty. 


PEOPLE  v.  LEWIS. 

(Supreme  Court  of  California,  1889.    124  CaL  561,  57  Tac.  470,  46  L.  R.  A.  783.) 

Tempi.E,   J.     The  defendant   was   convicted  of   manslaughter,   and 

appeals  from  the  judgment  and  from  an  order  refusing  aTrTew  trial.3 

Defendant  and  deceased  were  brothers-in-law,  and  not  altogether 

2  Tii''  prisoner  waa  foreman  of  a  gang  of  plate  layers,  wiio  had  boon  employed 
to  repair  the  rails.  He  had  been  furnished  with  u  time  book  showing  tbe  pre- 
cise i  lme  of  the  arrival  of  trains. 

»  Part  of  tii<-  opinion  is  omitted 


See.  1)  GENERAL   PRINCIPLES.  34  1 

friendly,  although  they  were  on  speaking  and  visiting  terms.  On  the 
morning  of  the  homicide  the  deceased  visited  the  residence  of  the 
defendant,  was  received  in  a  friendly  manner,  but  after  a  while  an  alter- 
cation arose,  as  a  result  of  which  defendant  shot  deceased  in  the  abdo- 
men, inflicting  a  wound  that  was  necessarily  mortal.  Farrell  fell  to 
the  ground,  stunned  for  an  instant,  but  soon  got  up  and  went  into 
the  house,  saying:  "Shoot  me  again;  I  shall  die  anyway."  His 
strength  soon  failed  him,  and  he  was  put  to  bed.  Soon  afterward, 
about  how  long  does  not  appear,  but  within  a  very  few  minutes,  when 
no  other  person  was  present  except  a  lad  of  about  nine  years  of  age, 
nephew  of  the  deceased  and  son  of  the  defendant,  the  deceased  pro- 
cured a  knife  and  cut  his  throat,  inflicting  a  ghastly  wound,  from  the 
effect  of  which,  according  to  the  medical  evidence,  he  must  necessarily 
have  died  in  five  minutes.  The  wound  inflicted  by  the  defendant 
severed  the  mesenteric  artery,  and  medical  witnesses  testified  that  un- 
der the  circumstances  it  was  necessarily  mortal,  and  death  would  en- 
sue within  one  hour  from  the  effects  of  the  wound  alone.  Indeed, 
the  evidence  was  that  usually  the  effect  of  such  a  wound  would  be  to 
cause  death  in  less  time  than  that,  but  possibly  the  omentum  may  have 
filled  the  wound,  and  thus,  by  preventing  the  flow  of  the  blood  from 
the  body,  have  stayed  its  certain  effect  for  a  short  period.  Internal 
hemorrhage  was  still  occurring,  and,  with  other  effects  of  the  gunshot 
wound,  produced  intense  pain.  The  medical  witnesses  thought  that 
death  was  accelerated  by  the  knife  wound.  Perhaps  some  of  them 
considered  it  the  immediate  cause  of  death. 

Now,  it  is  contended  that  this  is  a  case  where  one  languishing  from 
a  mortal  wound"~is  killed  by  an  intervening  cause,  and,  therefore, 
deceased  was  not  killed  by  Lewis.  To  constitute  manslaughter,  the 
defendant  must  have  killed  some  one,  and  if,  though  mortally  wound- 
ed by  the  defendant,  Farrell  actually  died  from  an  independent  in- 
tervening cause,  Lewis,  at  the  most,  could  only  be  guilty  of  a  feloni- 
ous attempt.  He  was  as  effectually  prevented  from  killing  as  he  would 
have  been  if  some  obstacle  had  turned  aside  the  bullet  from  its  course 
and  left  Farrell  unwounded.  And  they  contend  that  the  intervening 
act  was  the  cause  of  death,  if  it  shortened  the  life  of  Farrell  for  any 
period  whatever. 

The  Attorney  General  does  not  controvert  the  general  proposition 
here  contended  for,  but  argues  that  the  wound  inflicted  by  the  de- 
fendant was  the  direct  cause  of  the  throat  cutting,  and,  therefore,  de- 
fendant is  criminally  responsible  for  the  death.  He  illustrates  his 
position  by  supposing  a  case  of  one  dangerously  wounded  and  whose 
wounds  had  been  bandaged  by  a  surgeon.  He  says :  Suppose  through 
the  fever  and  pain  consequent  upon  the  wound  the  patient  becomes 
frenzied  and  tears  away  the  bandage  and  thus  accelerates  his  own 
death.  Would  not  the  defendant  be  responsible  for  a  homicide?  Un- 
doubtedly he  would  be,  for  in  the  case  supposed  the  deceased  died 
from  the  wound,  aggravated,   it   is  true,  by  the  restlessness  of  the 


342  homicide.  (Ch.  12 

deceased,  but  still  the  wound  inflicted  by  the  defendant  produced  death. 
Whether  such  is  the  case  here  is  the  question. 
I  The  Attorney  General  seems  to  admit  a  fact,  which  I  do  not  con- 
cede, that  the  gunshot  wound  was  not,  when  Farrell  died,  then  itself 
directlv  contributory  to  the  death.  I  think  the  jury  were  warranted 
^,  in  finding  that  it  was.  But  if  the  deceased  did  die  from  the  effect  of 
^the  knife  wound  alone,  no  doubt  the  defendant  would  be  responsible, 
if  it  was  made  to  appear,  and  the  jury  could  have  found  from  the  ev- 
idence, that  the  knife  wound  was  caused  by  the  wound  inflicted  by 
the  defendant  in  the  natural  course  of  events.  If  the  relation  was 
causal,  and  the  wounded  condition  of  the  deceased  was  not  merelyiihe 
occasion  upon  which  another  cause  intervened,  not  produced  by  the 
first  wound  or  related  to  it  in  other  than  a  casual  way,  then  defendant 
is  guilty  of  a  homicide.  But,  if  the  wounded  condition  only  afforded 
an  opportunity  for  another  unconnected  person  to  kill,  defendant 
would  not  be  guilty  of  a  homicide,  even  though  he  had  inflicted  a 
mortal  wound.  In  such  case,  I  think,  it  would  be  true  that  the  de- 
fendant was  thus  prevented  from  killing. 

The  case,  considered  under  this  view,  is  further  complicated  from 
the  fact  that  it  is  impossible  to  determine  whether  deceased  was  in- 
duced to  cut  his  throat  through  pain  produced  by  the  wound.  May  it 
not  have  been  from  remorse,  or  from  a  desire  to  shield  his  brother-in- 
law?  In  either  case  the  causal  relation  between  the  knife  wound  and 
the  gunshot  wound  would  seem  to  be  the  same.  In  either  case,  if 
defendant  had  not  shot  the  deceased,  the  knife  wound  would  not 
have  been  inflicted. 

Suppose  one  assaults  and  wounds  another,  intending  to  take  life, 
but  the  wound,  though  painful,  is  not  even  dangerous,  and  the  wound- 
ed man  knows  that  it  is  not  mortal,  and  yet  takes  his  own  life  to  es- 
cape pain,  would  it  not  be  suicide  only?  Yet.  the  wound  inflicted  by 
the  assailant  would  have  the  same  relation  to  death  which  the  origi- 
nal wound  in  this  case  has  to  the  knife  wound.  The  wound  in- 
duced the  suicide,  but  the  wound  was  not,  in  the  usual  course  of  things, 
the  cause  of  the  suicide. 

Though  no  case  altogether  like  this  has  been  found,  yet,  as  was  to 
have  been  expected,  the  general  subject  has  often  been  considered. 
In  1  Hale's  Pleas  of  the  Crown,  428,  the  law  is  stated.  So  far  as 
material  here,  his  views  may  be  thus  summarized:  (1)  If  one  gives 
another  a  dangerous  wound,  which  might  by  very  skillful  treatment 
be  cured,  and  is  not,  it  is  a  case  of  homicide.  (2)  If  one  inflicts  a 
dangerous  wound,  and  the  man  dies  from  the  treatment,  "if  it  can 
clearly  appear  that  the  medicine  and  not  the  wound  was  the  cause  of 
the  death,  it  seems  it  is  not  homicide;   but  then  it  mu  ir  clearly 

and  certainly  to  be  so."  (3)  If  one  receives  a  wound,  not  in  itself 
mortal,  and  fever  or  gangrene  sets  in  because  of  improper  treatment 
or  unruly  conduct  of  the  patient,  and  death  ensues,  it  is  homicide; 
"for  that  wound,  though  it  was  not  the  immediate  cause  of  his  death, 


Sec.  1)  GENERAL   PRINCIPLES.  343 

yet  it  was  the  mediate  cause  thereof,  and  the  fever  or  gangrene  was 
the  immediate  cause  of  his  death,  yet  the  wound  was  the  cause  of  the 
gangrene  or  fever,  and  so,  consequently,  is  causa  causati."  (4)  One 
who  hastens  the  death  of  a  person  languishing  with  a  mortal  disease 
is  guilty  of  a  nomicide;  for  the  death  is  not  merely  by  a  visitation 
of  Providence,  but  the  hurt  hastens  it  and  the  wrongdoer  cannot  thus 
apportion  the  responsibility,  et  cetera.  It  would  make  no  difference, 
I  presume,  if  the  person  killed  was  languishing  from  a  mortal  wound, 
rather  than  from  an  ordinary  disease. 

In  State  v.  Scates,  50  N.  C.  420,  a  child  was  found  dead,  badly  burn- 
ed, and  with  a  wound  from  a  blow  on  the  head.  The  burning  was  ad- 
mitted by  defendant,  but  the  blow  was  not,  and  it  was  not  proven  who 
inflicted  it.  The  medical  witness  thought  the  burning  was  the  primary 
cause  of  death,  but  the  blow  may  have  hastened  it.  The  jury  was 
told  that  if  it  was  doubtful  which  was  the  immediate  cause  of  death 
they  must  acquit,  but  if  they  found  that  the  burning  was  the  primary 
cause  of  death  and  the  blow  only  hastened  it  they  could  convict. 

The  case  was  reversed,  the  appellate  court  holding  that  the  blow 
might  have  been  the  independent  act  of  another,  and,  if  it  hastened 
the  death,  it,  and  not  the  burning,  was  the  cause  of  death. 

In  Bush  v.  Commonwealth,  78  Ky.  268,  the  deceased  received  a 
wound  not  necessarily  mortal,  and,  in  consequence,  was  taken  to  a 
hospital,  where  she  took  scarlet  fever  from  a  nurse  and  died  of  the 
fever.  The  court  said:  "When  the  disease  is  a  consequence  of  the 
wound,  although  the  proximate  cause  of  the  death,  the  person  in- 
flicting the  wound  is  guilty,  because  the  death  can  be  traced  as  a 
result  naturally  flowing  from  the  wound  and,  coming  in  the  natural 
order  of  things ;  but  when  there  is  a  supervening  cause,  not  naturally 
intervening  by  reason  of  the  wound,  the  death  is  by  visitation  of  Prov- 
idence, and  not  from  the  act  of  the  party  inflicting  the  wound. 
*  *  *  If  the  death  was  not  connected  with  the  wound  in  the 
regular  chain  of  causes  and  consequences,  there  ought  not  to  be  any 
responsibility." 

The  last  case,  in  my  opinion,  so  far  as  it  goes,  correctly  states  the 
law.  The  facts  of  this  case  do  not  bring  it  strictly  within  any  of  the 
propositions  found  in  Hale's  Pleas  of  the  Crown.  The  second  and 
third  propositions  both  predicate  a  wound  not  necessarily  mortal. 
What  the  law  would  have  been  in  the  second  case,  had  the  wound  been 
mortal  and  the  applications  had  hastened  the  death,  is  not  stated.  It 
seems  to  me,  however,  the  case  of  a  person  already  languishing  from  a 
mortal  wound  is  precisely  that  of  one  suffering  from  a  mortal  dis- 
ease. Certainly  the  willful  and  unlawful  killing  of  such  a  person 
would  be  a  felony,  and  it  cannot  be  true  that  the  first  offender  and  the 
last  can  each  be  guilty  of  murdering  the  same  man — if  they  had  no 
connection  with  each  other,  and  both  wounds  were  not  actively  operat- 
ing to  produce  death  when  it  occurred. 

But  why  is  it  that  one  who  inflicts  a  wound  not  mortal  is  guilty 


344  homicide.  (Ch.  12 

of  a  homicide,  if  through  misconduct  of  the  patient  or  unskillful  treat- 
ment gangrene  or  fever  sets  in,  producing  a  fatal  termination,  when, 
if  it  can  be  clearly  made  to  appear  that  the  medicine  and  not  the  wound 
was  the  cause  of  the  death,  he  is  not  guilty  of  a  homicide?  In  each 
case  if  the  wound  had  not  been,  the  treatment  would  not  have  been, 
and  the  man  would  not  then  have  died.  In  each  case  the  wound  occa- 
sioned the  treatment  which  caused  or  contributed  to  the  death.  The 
reason,  I  think,  is  found  in  the  words  advisedly  used  in  the  last  sen- 
tence. In  the  one  case  the  treatment  caused  the  death,  and  in  the 
other  it  merely  contributed  to  it.  In  one  case  the  treatment  aggravated 
the  wound,  but  the  wound  thus  aggravated  produced  death.  In  the 
other  the  wound,  though  the  occasion  of  the  treatment  did  not  con- 
tribute to  the  death,  which  occurred  without  any  present  contribu- 
tion to  the  natural  effect  of  the  medicine  from  the  wound.  Take,  for 
instance,  the  giving  of  a  dose  of  morphine,  by  mistake,  sufficient  to  end 
life  at  once.  In  such  case  it  is  as  obvious  that  the  treatment  produced 
death  as  it  would  have  been  had  the  physician  cut  off  his  patient's 
head.  But  see  People  v.  Cook,  39  Mich.  236,  33  Am.  Rep.  380.  In 
this  case  it  appears  that  defendant  had  inflicted  a  dangerous  wound,  but 
it  was  contended  by  the  defense  that  death  was  caused  by  an  over- 
dose of  morphine.  Defendant  asked  an  instruction  as  follows:  "If 
the  jury  believe  that  the  injury  inflicted  by  the  prisoner  would  have 
been  fatal,  but  if  death  was  actually  produced  by  morphine  poisoning, 
they  must  acquit."  The  instruction  was  refused,  but  the  jury  were 
told  that  if  the  wound  was  not  in  itself  mortal,  and  death  was  caused 
solely  by  the  morphine,  they  must  acquit.  The  action  of  the  trial 
court  was  sustained,  on  the  ground  that  a  mortal  wound  had  been 
given  which  necessitated  medical  treatment,  that  the  physicians  were 
competent  and  acted  in  good  faith,  and  that  it  was  not  made  clearly 
to  appear  that  the  morphine  solely  produced  death,  and  that  the  wound 
did  not  at  all  contribute  to  the  death  at  that  time.  Under  the  authori- 
ties this  was  equivalent  to  the  finding  that  the  wound  did  not  contri- 
bute to  the  death. 

This  case  differs  from  that  in  this:  That  here  the  intervening  cause, 
which  it  is  alleged  hastened  death,  was  not  medical  treatment  de- 
signed to  be  helpful,  and  which  the  deceased  was  compelled  to  pro- 
cure because  of  the  wound,  but  was  an  act  intended  to  produce  death 
and  did  not  result  from  the  first  wound  in  the  natural  course  of  events. 
But  we  have  reached  the  conclusion  by  a  course  of  argument  un- 
necessarily prolix,  except  from  a  desire  to  fully  consider  the  earnest 
and  able  argumenl  of  the  defendant,  that  the  test  is — or  at  least  one 
t  -whether,  when  the  death  occurred,  the  wound  indicted  by  the 
defendanl  did  contribute  to  the  event.  If  it  did,  although  other  inde- 
pendent also  contributed,  the  causal  relation  between  the  un- 
lawful acts  of  the  defendanl  and  the  death  lias  been  made  out.  Here, 
when  the  throat  was  cut,  Parrel!  was  not  merely  languishing  from 
a  mortal   wound.      He  was  actually   dying     and   after   the   throat  was 


Seel)  GENERAL   PRINCIPLES.  345 

cut  he  continued  to  languish  from  both  wounds.  Drop  by  drop  the 
life  current  went  out  from  both  wounds,  and  at  the  very  instant  of 
death  the  gunshot  wound  was  contributing  to  the  event.  If  the 
throat  cutting  had  been  by  a  third  person,  unconnected  with  the  de- 
fendant, he  might  be  guilty;  for,  although  a  man  cannot  be  killed 
twice,  two  persons,  acting  independently,  may  contribute  to  his  death, 
and  each  be  guilty  of  a  homicide.  A  person  dying  is  still  in  life,  and 
may  be  killed;  but,  if  he  is  dying  from  a  wound  given  by  another, 
both  may  properly  be  said  to  have  contributed  to  his  death. 

The  court  refused  to  instruct  the  jury  as  follows:  "If  you  believe 
from  the  evidence  that  it  is  impossible  to  tell  whether  Will  Farrell 
died  from  the  wound  in  the  throat  or  the  wound  in  the  abdomen,  you 
are  bound  to  acquit."  The  instruction  was  properly  refused.  It  as- 
sumed that  death  must  have  resulted  wholly  from  one  wound  or  the 
other,  and  ignored  the  proposition  that  both  might  have  contributed, 
as  the  jury  could  have  found  from  the  evidence. 

The  judgment  is  affirmed. 

McFarland,  and  Hensiiaw,  JJ.,  concurred. 

Hearing  in  banc  denied. 


TAYLOR  v.  STATE. 

(Court  of  Criminal  Appeals  of  Texas,  1900.    41  Tex.  Cr.  R.  564,  55  S.  W.  961., 

Henderson,  J.1  Appellant  objected  to  that  portion  of  the  charge 
of  the  court  which  instructed  the  jury,  in  effect,  that  if  defendant 
and  those  with  him  took  deceased,  Johnson,  in  custody,  and  com- 
pelled him  to  go  against  his  will  from  the  engine  to  the  express  car, 
and  that  same  was  a  place  of  danger,  where  deceased's  life  was  ex- 
posed, and  that  while  said  Johnson  was  in  such  place  of  danger,  and 
they  were  attempting  to  rob  the  train,  and  using  him  for  that  pur- 
pose, if  Buchanan,  in  resistance  to  the  perpetration  of  said  attempt- 

"If  one  man  inflicts  a  mortal  wound,  of  which  the  victim  is  languishing, 
and  then  a  second  kills  the  deceased  hy  an  independent  act,  we  cannot  imagine 
how  the  first  can  be  said  to  have  killed  him,  without  Involving  the  absurdity 
of  saying  that  the  deceased  was  killed  twice.  It  is  certain  that  the  second 
person  could  be  convicted  of  murder  if  he  killed  with  malice  aforethought, 
and  to  convict  the  first  would  be  assuming  that  he  had  also  killed  the  same 
person  at  another  time."    Battle,  J.,  in  State  v.  Scates,  50  N.  C.  423  (1S5S). 

See  also  People  v.  Ah  Fat,  48  Cal.  61  (1874). 

"Referring  to  the  allegation,  relating  to  the  second  ground  of  defense,  that 
a  lost  drainage  tube  (inserted  by  the  surgeons  in  attendance  to  relieve  their 
patient,  etc.)  found  its  way  into  the  spinal  canal  and  caused  the  death  of 
John  Schwindt,  the  learned  judge  said:  'But  suppose  it  did;  the  prisoner 
cannot  escape  by  showing  that  death  was  the  result  of  an  accident  occurring 
in  an  operation  which  his  felonious  act  made  necessary.  There  is  no  pretense 
that  the  drainage  tubes  were  not  required,  or  that  they  were  improperly  placed.' 
This  was  clearlv  correct."  Per  Curiam,  in  Commonwealth  v.  Eisenhower,  181 
Pa.  470,  37  Atl.  521,  59  Am.  St.  Rep.  670  (1897). 

i  Part  of  the  opinion  is  omitted. 


■ 


346  homicide.  (Ch.  12 

ed  robbery,  in  shooting  at  the  robbers,  innocently  shot  and  killed 
Lee  Johnson,  not  intending  to  kill  him,  but  intending  to  kill  the  par- 
ties attempting  to  perpetrate  the  robbery,  defendant  and  those  with 
him  would  be  as  guilty  as  if  they  themselves  had  shot  and  killed  said 
Lee  Johnson.  Appellant  objected  to  this  charge  of  the  court  on  the 
grounds:  (1)  That  the  evidence  did  not  show  that  defendant  and 
those  acting  with  him  placed  Johnson  in  front  of  the  express  car  to 
get  him  shot,  but  to  prevent  a  shooting;  (2)  because  in  front  of 
the  express  car  was  not  more  dangerous  than  at  any  other  place 
along  the  line;  (3)  because  said  charge  forced  the  jury  to  convict, 
even  if  they  believed  that  Buchanan  killed  Johnson,  and  did  not  al- 
low them  to  pass  upon  that  question ;  (4)  it  destroyed  appellant's 
innocence,  and  forced  a  conviction  even  if  Johnson  came  to  his 
death  by  any  outside,  independent,  and  unexpected  force,  by  a  mere 
passenger,  when  he  was  under  no  obligation  to  shoot;  (5)  it  does 
not  give  defendant  the  benefit  of  a  reasonable  doubt  as  to  the  exist- 
ance  of  facts  that  would  not  render  him  guilty  if  Buchanan  killed 
Johnson;  (6)  it  does  not  submit  the  law  of  murder  in  the  second 
degree.  This  presents  a  novel  question,  and  has  never,  so  far  as  we 
are  advised,  been  passed  upon  in  this  state ;  nor  do  we  find  an  an- 
alogous case  reported  elsewhere.  Appellant  cites  us  to  two  cases 
in  support  of  his  contention :  Commonwealth  v.  Campbell,  7  Allen 
(Mass.)  541,  83  Am.  Dec.  705;  Butler  v.  People,  125  111.  641,  IS 
X.  E.  338,  1  L.  R.  A.  211,  8  Am.  St.  Rep.  423.  Both  of  these  were 
cases  of  riot,  where  certain  officers  (in  attempting  to  quell  the  riot), 
in  shooting,  accidentally  killed  bystanders  who  were  not  engaged  in 
the  riot.  The  prosecution  attempted  to  hold  the  rioters  respon- 
sible for  the  killing  by  the  officers  who  were  opposed  to  them.  The 
court  refused  to  hold  the  rioters  responsible  for  the  killing  by  the 
officers,  on  the  ground  that  the  act  was  not  done  by  the  rioters,  nor 
in  pursuance  of  any  design  by  them;  that  the  sheriff  was  not  act- 
ing with  them,  and  they  were  in  no  wise  responsible  for  his  acts. 
The  court,  after  citing  authorities,  say:  "That  no  person  can  be 
held  responsible  for  a  homicide  unless  the  act  was  either  actually  or 
constructively  committed  by  him;  and,  in  order  to  be  his  act,  it  must 
be  committed  by  his  hand,  or  by  some  one  acting  in  concert  with 
him,  or  in  furtherance  of  the  common  design  or  purpose.  Where 
the  criminal  liability  arises  from  the  act  of  another,  it  must  appear 
that  the  act  was  done  in  furtherance  of  the  common  design,  or  in 
prosecution  of  the  common  purpose  for  which  the  parties  were  as- 
embled  or  combined  together;  otherwise,  a  person  might  be  con- 
victed for  a  crime,  to  the  commission  of  which  he  never  assented, 
ainl  could  nol  be  punished  upon  any  principle  of  justice."  And 
again:     "There  common    design   or   purpose  existing  be- 

tween  the  two  defendants  and  Conrey,   the  officer.     They  had  not 
assembled  or  come  together  for  the  commission  of  any  unlawful  act. 
wre  enemies,  belonging  to  opposite  factions.     And  we  know 


Sec.  1)  GENERAL   PRINCIPLES.  347 

of  no  principle  upon  which  it  can  be  held  that  the  defendants  are 
liable  for  the  act  of  Conrey."  And  again:  "They  would  be  re- 
sponsible for  what  they  did  themselves,  and  such  consequences  as 
might  naturally  flow  from  their  acts  and  conduct;  but  they  never 
advised,  encouraged,  or  assented  to  the  acts  of  Conrey,  nor  did  they 
combine  with  him  to  do  any  unlawful  act,  nor  did  they  in  any  man- 
ner assent  to  anything  he  did,  and  hence  they  could  not  be  responsi- 
ble for  his  conduct  towards  deceased.  It  would  be  a  strange  rule 
of  law,  indeed,  to  hold  a  man  liable  for  a  crime  which  he  did  not 
commit,  which  he  did  not  advise,  and  which  was  committed  without 
his  knowledge  or  assent,  express  or  implied."  This  is  correct  doc- 
trine, and  applicable  to  the  facts  of  those  cases.  But  there  are  some 
expressions  in  the  opinion  which  suggest  that  there  are  cases  per- 
taining to  another  and  different  rule.  For  instance,  it  is  said  that 
the  parties  would  be  responsible  for  a  homicide  actually  or  construc- 
tively committed  by  them,  and  they  would  be  responsible  for  what 
they  did  themselves,  and  such  consequences  as  might  naturally  flow 
from  their  acts  and  conduct.  If  the  rioters  in  said  cases  had  taken  the 
man  who  was  killed,  and  made  a  breastwork  of  him,  it  would  be  a 
different  case.  We  do  not  understand  the  doctrine  enunciated  to 
apply  to  a  case  where  the  rioters  might  forcibly  make  use  of  another 
in  their  design,  and  cause  him  to  be  killed  by  putting  him  in  a  place 
of  danger.  The  whole  question  here  is  one  of  causal  connection. 
If  the  appellant  here  set  in  mottorr-trre-cause  which  occasioned  the 
death'  of  deceased,  we  hold  it  to  be  a  sound  doctrine  that  he  would 
be  as  culpable,  as  if  he  had  done  the  deed  with  his  own  hands.  On 
this  subject  we  quote  from  3  Greenleaf  on  Evidence,  §  1420,  as  fol- 
lows: "Forcing  a  person  to  do  an  act  which  causes  his  death  ren- 
ders the  death  the  guilty  deed  of  him  who  compelled  the  deceased 
to  do  the  act,  and  it  not  material  whether  the  force  was  applied  to 
the  body  or  to  the  mind;  but,  if  it  were  the  latter,  it  must  be  shown 
that  there  was  the  apprehension  of  immediate  violence,  and  well 
grounded,  and  the  circumstances  by  which  deceased  was  surround- 
ed; and  it  need  not  appear  that  there  was  any  other  way  of  escape, 
but  it  must  appear  that  the  step  was  taken  to  avoid  the  threatened 
danger,  and  such  as  a  reasonable  man  might  take."  Again,  1  Rus- 
sell on  Crimes,  p.  675,  says:  "Forcing  a  person  to  do  an  act  which 
is  likely  to  produce  his  death,  and  which  does  produce  it,  is  murder, 
and  threats  may  constitute  such  force."  Mr.  Bishop,  to  the  same 
effect,  uses  the  following  language:  "He  whose  act  causes  in  any 
way,  directly  or  indirectly,  the  death  of  another,  kills  him,  within 
the  meaning  of  the  law  of  felonious  homicide.  It  is  a  rule  both  of 
reason  and  the  law  that  whenever  one's  will  contributes  to  impel  a 
physical  force,  whether  another's,  his  own,  or  a  combined  force,  pro- 
ceeding from  whatever  different  sources,  he  is  responsible  for  the 
result,  the  same  as  though  his  hand,  unaided,  had  produced  it.  The 
contribution,  however,  must  be  of  such  magnitude,  and  so  near  the 


318  homicide.  (Ch.  12 

result,  that,  sustaining  to  it  the  relation  of  contributory  cause  to  ef- 
fect, the  law  takes  it  within  its  cognizance."  See  2  Bish.  New  Crim. 
Law,  §§  424,  635,  636,  637,  657,  679,  689;  1  Bish.  Crim.  Law,  §§ 
562.  563.  To  the  same  effect  see  1  Whart.  Crim.  Law,  §§  152,  167; 
Whart.  on  Homicides,  §§  338-340;  Adams  v.  People,  109  111.  444, 
50  Am.  Rep.  617.  From  these  authorities,  we  apprehend,  if  the  rob- 
bers had  commanded  deceased  to  take  his  place  in  front  of  the  in- 
coming train,  and  by  threats  and  force  compelled  him  to  stand  there, 
in  order  to  wreck  or  stop  it,  that  they  might  perpetrate  a  robbery, 
it  will  not  be  controverted  that  the  causal  connection  between  the 
acts  of  the  robbers  and  the  death  of  the  deceased  would  be  com- 
plete, in  case  deceased  had  been  killed  by  the  train,  and  that  in  such 
case  they  would  be  liable  for  his  murder.  It  occurs  to  us  that  the 
causal  connection  in  proof  here  was  as  complete.  They  caused  de- 
ceased to  go  to  a  place  of  danger,  he  protesting.  They  caused  him 
to  do  this  by  force,  as  the  circumstances  all  indicate,  and  while  he 
was  held  in  place  by  their  command  he  was  killed  by  those  resist- 
ing the  robbery,  or  by  the  robbers  themselves;  and  in  either  event 
we  consider  the  immediate  means  of  his  death  immaterial.  This  is 
the  rule  at  common  law,  and  is  the  logic  of  common  sense,  and  is 
recognized  by  our  statutes  on  the  subject.  Article  77,  Pen.  Code, 
is  as  follows:  "If  any  one  by  employing  a  child  or  other  person 
who  cannot  be  punished,  to  commit  an  offense,  or  by  any  means, 
such  as  laying  poison  where  it  may  be  taken  and  with  intent  that  it 
shall  be  taken,  or  by  preparing  any  other  means  by  which  a  person 
may  injure  himself,  and  with  the  intent  that  such  person  shall  there- 
by be  injured,  or  by  any  other  indirect  means  cause  another  to  re- 
ceive an  injury  to  his  person  or  property,  the  offender  by  the  use 
of  such  indirect  means  becomes  a  principal."  Article  651  provides: 
"Homicide  is  the  destruction  of  the  life  of  one  human  being  by  the 
act,  agency,  procurement,  or  culpable  omission  of  another."  Ar- 
ticle ^7)Q:  "Although  it  is  necessary  to  constitute  homicide  that  it 
shall  result  from  some  act  of  the  party  accused,  yet  if  words  be  used 
which  are  reasonably  calculated  to  produce  and  do  produce  an  act 
which  is  the  immediate  cause  of  death,  it  is  homicide.  As,  for  ex- 
ample: If  a  blind  man,  a  stranger,  child  or  a  person  of  unsound  mind 
be  directed  by  words  to  a  precipice  or  other  dangerous  place,  where 
he  falls  and  is  killed,  or  if  one  be  directed  to  take  any  article  of  medi- 
cine, food  or  drink,  known  to  be  poisonous,  and  which  docs  produce 
a  fatal  effect — in  these  and  like  cases,  the  person  so  operating  upon 
the  mind  or  conduct  of  the  person  injured,  shall  be  deemed  guilty  of 
homii  These  authorities  show  that  the  person,  in  order  to  be 

guilty  of  homicide,  need  not  do  the  act  of  killing  directly,  but  he  can 
produce  the  cause  thus  by  indirection,  such  as  by  force  and  threats 
iting  upon  the  mind  of  another,  and  causing  that  other  to  take 
a  place  of  danger,  where  he  i^  liable  to  be  killed.     Mr.  Wharton  says 

"that  it  is  not  necessary,  in  order  to  establish  a  ran. sal  relation  between 
the  will  and  effect,  that  the  effect  should  be  precisely  what  the  party 


Sec.  1)  GENERAL    PRINCIPLES.  349 

wills  to  do.  Nor  is  it  necessary  that  it  should  be  the  primary  object  the 
offender  had  in  view,  as  it  is  sufficient  if  the  object  in  view  was  one 
which  could  not  be  obtained  without  lawbreaking.  Nor  need  such 
act  of  law-breaking  be  necessary  to  the  execution  of  the  purpose.  It 
may  be  only  incidentally  involved  in  such  purpose,  yet,  if  the  will  be 
to  effect  the  purpose,  lawfully  or  unlawfully,  the  will  is  to  be  regarded 
as  causing  the  illegal  act."  1  Whart.  Crim.  Law,  §  152.  So  we  see 
that  it  may  not  have  been,  as  is  contended  for  by  appellant,  the  primary 
object  of  himself  and  companions  to  have  Johnson  killed,  without 
killing  any  one.  But  their  act  was  unlawful.  It  was  a  felony.  They 
chose  to  put  deceased  in  a  dangerous  place,  in  order  to  consummate 
their  purpose,  regardless  of  whether  he  was  killed  or  not.  They  put 
him  there  in  order  to  effect  the  robbery,  and  while  they  required 
him  to  remain  at  the  post  assigned  him,  which  was  a  place  of  danger, 
he  was  shot.  His  life  was  taken  on  account  of  their  direct  and  law- 
less act,  and  they  are  responsible  for  his  murder,  whether  it  was  oc- 
casioned by  their  own  volition  or  by  the  shots  of  their  adversaries ; 
and  their  act  was  the  proximate  cause  of  the  destruction  of  his  life, 
and  they  cannot  escape  the  consequences.  Our  statute  defines  murder 
essentially  the  same  as  said  offense  is  defined  at  common  law,  and 
our  Code  further  makes  murder  in  the  perpetration  or  attempted 
perpetration  of  robbery,  etc.,  murder  in  the  first  degree;  and  the 
only  question,  therefore,  is  one  of  causal  connection,  and  both  the 
common  law  and  our  statutes,  as  we  have  seen,  are  in  harmony  on 
this  proposition.  Appellant  was  indicted  as  a  principal,  and  the  allega- 
tion made  that  he  shot  and  killed  deceased ;  and  whether  he  or  one  of 
his  companions  fired  the  fatal  shot,  or  the  shot  which  killed  him  was 
fired  by  Buchanan  in  resistance  to  their  attempt,  they  using  deceas- 
ed as  a  means  to  consummate  the  robbery,  the  allegation  that  ap- 
pellant, as  a  principal,  fired  the  shot  which  killed  deceased,  is  equally 
correct.  We  therefore  hold  that  the  court  did  not  err  in  submitting 
the  question  of  causal  connection,  to  wit,  if  appellant  and  those  with 
him  in  attempting  to  perpetrate  the  robbery  of  the  train  used  de- 
ceased for  their  purposes,  and  compelled  him  to  occupy  a  dangero'us 
place  in  order  to  consummate  their  design,  then  appellant  would  be 
responsible  for  his  death.  ,  On  the  contrary,  the  court  should  also 
have  instructed  the  jury  that  if  appellant  and  those  with  him,  engaged 
in  the  perpetration  of  the  robbery,  etc.,  did  not  compel  deceased  to  go 
with  them  and  occupy  a  place  of  danger  in  consummating  their  de- 
sign, and  he  was  killed  by  the  opposite  party,  or  those  resisting  the 
design  to  rob,  then  appellant  would  not  be  responsible  for  his  death.2 

2  The  judgment  was  reversed  on  othor  grounds. 

"It  is  unquestionably  true  that,  where  two  or  more  persons  conspire  or 
confederate  together  to  commit  a  felony,  each  is  criminally  responsible  for 
every  crime  committed  by  his  co-conspirators  done  in  pursuance  of  the  original 
conspiracy,  and  which  naturally  or  reasonably  might  be  anticipated  to  result 
from  it.  Therefore,  if  either  of  the  defendants,  in  attempting  to  commit  the 
robbery  for  which  they  conspired,  had  shot  and  killed  John  Young,  or  had 
shot  at  John  Young,  and,  missing  him,  had  killed  a  bystander,  both  would 


350  Homicide.  (Ch.  12 

SECTION  2.— MURDER. 


Homicide  against  the  life  of  another,  amounting  to  felony  with 
malice,  is  either  murder  or  petit  treason.    And  first  of  murder. 

The  word  "murder"  anciently  signified  only  the  private  killing 
of  a  man,  for  which,  by  force  of  a  law  introduced  by  King  Canute 
for  the  preservation  of  his  Danes,  the  town  or  hundred  where  the 
fact  was  done  was  to  be  amerced  to  the  King,  unless  they  could  prove 
that  the  person  slain  was  an  Englishman  (which  proof  was  called 
Engleschire),  or  could  produce  the  offender,  etc.  And  in  those  days 
the  open,  wilful  killing  of  a  man  through  anger  or  malice,  etc.,  was 
not  called  murder,  but  voluntary  homicide. 

But  the  said  law  concerning  Engleschire  having  been  abolished  by 
14  Edw.  Ill,  c.  4,  the  killing  of  any  Englishman  or  foreigner  through 
malice  prepense,  whether  committed  openly  or  secretly,  was  by  degrees 
called  murder;  and  13  Rich.  II,  c.  1,  which  restrains  the  king's  par- 
don in  certain  cases,  does  in  the  preamble,  under  the  general  name 
of  murder,  include  all  such  homicide  as  shall  not  be  pardoned  without 
special  words ;  and  in  the  body  of  the  act,  expresses  the  same  by 
"murder,  or  killing  by  await,  assault,  or  malice  prepensed."1  And 
doubtless  the  makers  of  23  Hen.  VIII,  c.  1,  which  excluded  all  wil- 
ful murder  of  malice  prepense  from  the  benefit  of  clergy,  intended 
to  include  open  as  well  as  private  homicide  within  the  word  murder. 

By  murder,  therefore,  at  this  day,  we  understand  the  wilful  killing 
of  any  subject  whatsoever  through  malice  forethought,  whether  the 
person  slain  shall  be  an  Englishman  or  foreigner. 

1  Hawkins,  P.  C.  c.  13. 

Petit  treason,  according  to  St.  25  Edw.  Ill,  c.  2,  may  happen  three 
ways :  By  a  servant  killing  his  master,  a  wife  her  husband,  or  an 
ecclesiastical  person  (either  secular  or  regular)  his  superior,  to  whom 
he  owes  faith  and  obedience.  The  punishment  of  petit  treason  in  a 
man  is  to  be  drawn  and  hanged,  and  in  a  woman  to  be  drawn  and 
burned,  the  idea  of  which  latter  punishment  seems  to  have  been 
handed  down  to  us  by  the  laws  of  the  ancient  Druids.2 

I   Blackstone,  Com.  203. 

hnvo  been  guilty  <>r  murder.  But  iiiis  is  not  ihe  case  we  have  al  bar.  Here 
the  l n »i 1 1 i '  i < i < •  whs  not  committed  by  the  conspirators,  either  In  the  pursuance 
of  the  conspiracy  or  at  all;  bul  it  was  the  result  of  action  on  the  part  of 
John  Young,  the  proprietor  of  the  lions.',  In  opposition  to  the  conspiracy,  and 
entirely  contrary  to  the  wishes  and  hopes  of  the  conspirators.  The  defendants 
can  in  no  Bense  be  Bald  to  have  aided  or  abetted  John  Young,  for  he  was  Bring 
:it  them;  and  to  hold  them  responsible  criminally  for  the  accidental  death  of 
:i  bystander,  growing  oul  <>f  his  hud  aim,  would  be  carrying  the  rule  of  crlml" 
mil  responsibility  for  the  acts  of  "(hers  beyond  all  reason."  Barker,  J.,  in 
Commonwealth  v,  Moore  (Ky.)  88  s.  W.  lose.  2  L.  R,  A.  (X.  s.)  719  (1906.) 

■  See  "Early  History  of  Malice  Aforethought"  Fr^wr^vraiFlaiuT,  8  L.  Mag. 
&  ftev.  I  itii  Ber.)  406. 

■  The  distinction  between  petit  treason  and  murder  was  abolished  by  St 

o    [V,  c.  81,  §  2  (1828). 


Sec.  2)  MURDER.  351 

REX  v.  HALLOW  AY. 

(King's  Bench,  1G28.     Cro.  Car.  131.) 

Halloway  was  indicted  and  arraigned  at  Newgate  for  murder- 
ing one  Payne.  The  indictment  was  that  he,  ex  malitia  sua  prsecog- 
itata,  tied  the  said  Payne  at  a  horse's  tail  and  struck  him  two  strokes 
with  a  cudgel,  being  tied  to  the  said  horse,  whereupon  the  horse  ran 
away  with  him,  and  drew  him  upon  the  ground  three  furlongs,  and 
thereby  brake  his  shoulder,  whereof  he  instantly  died,  and  so  mur- 
dered him. 

Upon  this  indictment  he,  being  arraigned,  pleaded  not  guilty,  and 
thereupon  a  special  verdict  found  that  the  Earl  of  Denbigh  was  pos- 
sessed of  a  park  called  Austerly  Park;  and  that  the  said  Halloway 
was  woodward  of  his  woods  in  the  said  park,  and  that  the  said  Payne, 
with  others  unknown,  entered  the  said  park  to  cut  wood  there,  and 
that  the  said  Payne  climbed  up  a  tree,  and  with  a  hatchet  cut  down 
some  boughs  thereof;,  and  that  the  said  Halloway  came  riding  into 
the  park,  and  seeing  the  said  Payne  on  the  tree  commanded  him  to 
descend,  and  he  descending  from  thence  the  said  Halloway  struck 
him  two  blows  upon  the  back  with  his  cudgel ;  and  the  said  Payne 
having  a  rope  tied  about  his  middle,  and  one  end  of  the  rope  hang- 
ing down,  the  said  Halloway  tied  the  end  of  that  rope  to  his  horse's 
tail,  and  struck  the  said  Payne  two  blows  upon  his  back;  whereupon 
the  said  Payne  being  tied  to  the  horse's  tail,  and  the  horse  running 
away  with  him,  drew  him  upon  the  ground  three  furlongs,  and  by 
this  means  brake  his  shoulder,  whereof  he  instantly  died,  and  the 
said  Halloway  cast  him  over  the  pales  into  certain  bushes.  And. 
whether  upon  all  this  matter  found  the  said  Halloway  be  guilty  of 
the  murder,  prpjut?  they  pray  the  discretion  of  the  court;  and  if  the 
court  shall  adjudge  him  guilty  of  the  murder,  they  find  him  guilty  of 
of  the  murder;    if  otherwise,  they  find  him  guilty  of  manslaughter. 

This  special  verdict  was  removed  by  certiorari  into  the  King'? 
Bench,  and  depended  three  terms;  and  the  opinion  of  all  the  Judges 
and  Barons  was  demanded,  and  they  all  (except  Hutton,  who  doubt- 
ed thereof)  held  clearly  that  it  was  murder,  for  when  the  boy  who 
was  cutting  on  the  tree  came  down  from  thence  upon  his  command 
and  made  no  resistance,  and  he  then  struck  him  two  blows  and  tied 
him  to  the  horse's  tail  and  then  struck  him  again,  whereupon  the 
horse  ran  away,  and  he  by  that  means  was  slain,  the  law  implies  mal- 
ice ;  and  it  shall  be  said  in  law  to  be  prepensed  malice,  he  doing  it  to 
one  who  made  no  resistance.  And  so-iirrs^term  all  the  Justices  de- 
livered the  reason  of  their  opinions ;  whereupon  judgment  was  given, 
and  he  was  adjudged  to  be  hanged,  and  was  hanged  accordingly. 


352  homicide.  (Ch.  12 

PEW'S  CASE. 
(King's  Bench,  1630.    Cro.  Car.  1S3.) 

Thomas  Pew  was  arraigned  for  the  murder  of  one  Gardiner,  and 
upon  evidence  it  appeared  that  the  said  Gardiner  was  a  bailiff  sworn 
and  known,  and  under-bailiff  to  the  dean  and  chapter  of  Westminster; 
and  he  having  the  sheriff's  warrant  to  arrest  the  said  Thomas  Pew 
upon  a  capias  out  of  the  Common  Pleas,  and  seeing  him  in  Shire 
Lane,  within  the  liberty  of  Westminster,  the  said  Pew,  seeing  him 
come  towards  him,  drew  his  sword,  and  the  said  Gardiner  approach- 
ing to  lay  hold  on  him  (not  using  any  words  of  arrest,  as  was  proved) 
Thomas  Pew  said  (as  it  was  proved  upon  examination  of  two  wit- 
nesses before  the  coroner),  "Stand  off!  come  not  near  me!  I  know 
you  well  enough :  come  at  your  peril !"  and  the  bailiff  taking  hold  of 
him,  he  thrust  him  with  his  sword  so  that  he  died  immediately.  It 
was  held  by  all  the  court  that  it  was  murder,  for  he  coming  as  an  of- 
ficer to  arrest,  and  not  offering  any  other  violence  or  provocation, 
although  he  used  not  the  words  "I  arrest  you,"  or  showed  him  any 
warrant,  because  peradventure  he  had  not  time,  nor  was  demanded  the 
cause,  the  law  presumes  it  to  be  malice  and  murder  in  him  that  so 
kills  one  being  an  officer  and  coming  to  execute  process. 


PENNSYLVANIA  v.  HONEYMAN. 
(County  Court  of  Allegheny,  1793.     Add.  [Pa.]  147.) 

Honeyman  was  indicted  for  the  murder  of  Benjamin  Askins,  on  23d 
November,  1793.  Askins,  Honeyman,  and  two  others,  Ward  and 
Faris,  had  been  drinking  together,  and  were  dancing  in  Askins'  house. 
Ward  shoved  Faris,  who  complained  of  it.  Ward  asked  if  he  resent- 
ed it.  Askins  said  if  he  did  not,  he  would ;  and  he  threw  off  his 
clothes,  and  struck  at  Ward,  who  kept  off  the  blow,  and  left  the  house. 
Honeyman  called  after  him  to  come  back  and  see  it  out,  and  he  would 
see  fair  play.  Ward  would  not.  Honeyman  turned  to  Askins,  said, 
"You  are  a  damned  rascal  to  strike  a  man  before  he  is  ready," 
knocked  him  down,  stamped  on  him,  and  beat  him.  Two  or  three 
times,  as  Askins  raised  himself  to  his  knee,  Honeyman  knocked 
him  down,  telling  him,  "Ben,  if  you  know  when  you  arc  well,  lie 
still."  Askins  died  the  next  day  of  the  bruises.  He  was  a  puny,  weak 
man;    Honeyman  was  a  stout  young  follow. 

Brackenridge  and  Carson,  for  the  defendant.  Fighting  on  a  sud- 
den quarrel,  and  killing,  is  only  manslaughter.  We  admil  ihi^  is  man- 
slaughter. Though  implied  malice  be  sufficient  to  make  the  killing 
murder,  still  there  must  be  malice.  If  there  be  no  circumstances  of 
malignity,  or  if  the  killing  1"-  udden,  or  with  a  weapon  not  likely  to 
kill,  there  is  no  ground  for  implying  malice.    Here  there  is  no  dcliber- 


Sec.  2)  MURDER.  353 

ate  design.  The  parties  were  in  liquor.  Askins  and  Honeyman  were 
on  terms  of  friendship.  Askins  violated  the  peace  in  his  own  house. 
Honeyman  wanted  to  repress  him,  and  what  he  did  was  in  defense  o< 
his  friend. 

Galbraith,  for  the  state,  contended  that  from  the  evidence,  and 
the  law  arising  out  of  it,  the  killing  was  murder. 

President.  The  unfortunate  ground  of  this  crime  is  that  riotous 
intemperance,  so  dangerous  on  all  occasions,  especially  in  unguarded 
and  unprincipled  company. 

This  is  not  justifiable  homicide,  not  having  happened  in  the  dis- 
charge of  any  duty ;  nor  is  it  excusable,  not  having  happened  in  self- 
defense,  or  by  accident.  It  must,  therefore,  be  felonious  homicide; 
and  the  question  is  whether  it  is  murder  or  manslaughter 

Prima  facie,  every  killing  is  murder,  for  malice  is  presumed,  un- 
less the  prisoner  show  extenuating  circumstances,  which  take  away 
the  presumption  of  malice.  If  there  be  no  malice,  it  is  but  manslaugh- 
ter. If  there  be  express  malice,  or  malice  implied  in  the  circumstances 
of  the  transaction,  it  is  murder.  The  distinction  between  murder  and 
manslaughter  is  nice;  and  cases  lying  on  the  borders  of  both  have 
been  often,  and  long  and  earnestly,  disputed,  and  doubtfully  decided. 
Hence  so  many  special  verdicts,  to  find  whether  manslaughter  or 
murder. 

I  have  said  that  every  voluntary  killing,  or  every  act  which  ap- 
parently must  do  harm,  which  is  done  with  intent  to  do  harm,  and 
done  without  provocation,  and  of  which  death  is  the  consequence,  is 
murder  * ;  for  provocation  is  not  presumed,  and  malice  is  presum- 
ed. The  law  implies  malice,  and  the  defendant  must  show  provo- 
cation, to  rebut  the  presumption  of  malice.  But  malice  may  be  more 
than  implied ;  it  may  be  express.  Malice  express  is  a  deliberate  or 
formed  design  of  taking  away  the  life  of  another,  or  of  doing  him 
some  bodily  mischief;  and  this  may  be  manifested  either  by  words  or 
actions.  Implied  malice  is  collected  either  from  the  manner  of  the 
killing,  or  from  the  person  killed,  or  the  person  killing.  In  willful 
poisoning,  in  killing,  though  undesignedly,  by  a  voluntary  act,  ap- 
parently mischievous,  or  in  killing  without  provocation,  malice  is 
implied  from  the  manner  of  the  act;  and  it  is  not  necessary  that  the 
malice  should  have  existed  long  before.  It  is  sufficient,  if  it  exist 
at  the  time.  Malice,  as  used  in  the  definition  of  murder,  is  a  techni- 
cal expression,  and  not  to  be  taken  in  the  common  sense  of  that  word. 
In  common  acceptation,  malice  is  taken  to  be  a  settled  anger  in  one 
person  against  another,  and  a  desire  of  revenge.  But  in  this  legal 
or  technical   acceptance  it   imports   a   wickedness,   which   includes   a 

i  "There  is  no  rule  recognized  as  authority  which  will  allow  a  conviction  of 
murder  where  a  fatal  result  was  not  intended,  unless  the  injury  intended  was 
one  of  a  very  serious  character,  which  might  naturally  and  commonly  involve 
loss  of  life  or  grievous  mischief."  Campbell,  J.,  in  Wellar  v.  People,  30  Mich. 
20  (1874).  Accord:  State  v.  Jarrott,  23  N.  O.  7G  (1840). 
Mik.Cb.L.— 23 


L/k#r4( 


354  homicide.  (Ch.  12 

circumstance  attending  an  act,  that  cuts  off  all  excuse.  It  is  used  as 
synonymous  to  frowardness  of  mind,  and  means  that  the  fact  hath 
been  attended  with  such  circumstances  as  are  the  ordinary  symptoms 
of  a  wicked,  depraved,  malignant  spirit,  the  plain  indications  of  a 
heart  regardless  of  social  duty,  and  fatally  bent  upon  mischief.  It  is 
a  design  of  doing  mischief,  a  voluntary  cruel  act.  Malice,  therefore, 
is  implied  in  every  act  of  killing  for  which  there  is  no  legal  justifica- 
tion, excuse,  or  extenuation.2 

The  excuse  for  murder  arises  from  authority  not  wantonly  or  cruelly 
exercised  or  abused,  or  from  the  infirmity  of  the  human  constitution. 
A  father  may  correct  his  child,  or  a  master  his  servant,  apprentice, 
or  scholar,  in  a  reasonable  manner;  and  if  an  accidental  death  ensue 
it  is  only  manslaughter,  or  perhaps  homicide  per  infortunium.  But 
if  the  correction  be  unreasonable,  with  unusual  or  improper  weapons, 
or  with  extraordinary  circumstances  of  cruelty,  and  if  death  be  the 
consequence  of  it,  such  killing  is  murder.  Such  would  be  the  case  of 
a  killing,  by  any  person,  in  the  preservation  of  the  peace.  If  one, 
having  no  authority  over  another,  but  provoked  to  passion  by  an  act 
of  personal  violence,  in  his  passion  beat  the  person  thus  violently 
provoking  him,  and  by  such  beating  kill  him,  it  is  but  manslaughter. 
Passion  excludes  the  presumption  of  malice.  But  if  the  provocation 
was  not  sufficient,  or,  whatever  it  might  have  been,  if  there  was  no 
passion  excited,  or,  though  excited,  if  there  was  time  for  the  passion 
to  cool,  and  it  had  subsided,  the  killing  is  murder.  Cool  expressions, 
wanton  and  deliberate  or  unusual  cruelty,  are  evidences  of  want  of 
passion,  and  are  therefore  evidences  of  malice.  Suddenly  interfering, 
in  favor  of  a  friend  engaged  in  combat  with  another,  and  killing  the 
other  in  defense  of  this  friend,  has  been  held  but  manslaughter.  This 
must  be  on  the  supposition  of  passion  excited  by  the  danger  of  the 
person  in  whose  favor  the  killer  interferes  in  the  quarrel. 

The  jury  are  the  judges  whether  the  facts  be  true  or  not.  The 
court  must  judge  of  what  description  the  crime  is,  which  those  facts 
compose,  whether  murder,  manslaughter,  or  inferior  homicide;  for 
that  is  defining  or  explaining  what  the  law  is,  and  this  is  the  duty  of 
the  court. 

It  liccomes  our  duty,  therefore,  to  say,  on  the  supposition  that  the 
facts  stated,  and  not  contradicted  here,  were  what  really  happened, 
whether  they  amount  to  manslaughter  only,  or  to  murder.  This  de- 
pends on  whether  Honeyman  acted  with  malice  aforethought  in  its 
legal  sense;  and  this  depends  on  whether  he  acted  on  sufficient  provo- 
cation and  in  passion. 

\\c  had  no  provocation.  The  provocation  was  to  Ward.  There 
was  no  occasion  to  interfere  in  favor  of  Ward;    for  he  had  left  the 

2  "Rofiurod  to  in  lowesl  terms,  malice  In  murder  nir;ins  knowledge  of  such 
circumstances  thai  according  to  common  experience  there  is  n  plain  and  strong 
likelihood  thai  death  win  follow  the  contemplated  act,  coupled,  perhaps,  with 
an  Implied  negation  of  any  excuse  or  |u  tlflcatlon."  Holmes,  Q,  J.,  in  Com- 
monwealth v.  Chance,  l T-i  Mass.  252,  :,\  x.  v,.  r,r>i,  75  Am.  St.  Rep.  300  (1899). 


Sec.  2)  murder.  355 

house,  and  was  out  of  the  reach  of  danger,  if  he  had  ever  been  in 
any,  from  Askins.  Askins  was  preserving  (however  improperly)  the 
peace  of  his  own  house.  Honeyman  had  no  right  to  interfere;  and 
we  see  no  interest  that  he  had  in  Ward  more  than  in  Askins,  nor  any 
motive,  but  the  love  of  mischief.  If  even  there  had  been  provocation 
(and  there  was  none),  Honeyman  appears  to  have  been  cool,  and 
without  passion.  As  he  knocks  down  Askins,  he  says,  "If  you  know 
when  you  are  well,  Ben,  lie  still."  His  acts  are  voluntary,  wanton, 
deliberate,  and  cruel,  to  a  poor,  weak  man.  They  are  the  symptoms 
of  a  froward  mind,  of  a  wicked,  depraved,  and  malignant  spirit,  the 
plain  indications  of  a  heart  regardless  of  social  duty  and  fatally  bent 
upon  mischief.  They  therefore  manifest  malice  aforethought;  and 
this  killing  is  murder. 

The  jury  found  him  guilty  of  murder;  and  sentence  of  death  was 
passed  on  him.  An  application  was  made  for  a  pardon,  and,  on  a 
reference  to  the  Attorney  General,  he  suggested,  as  an  error  in  the 
indictment,  that  the  epithets  feloniously,  willfully,  etc.,  applied  to  the 
assault,  were  not  also  applied  to  the  stroke.  On  this  a  writ  of  error 
was  brought.  What  the  issue  of  this  was,  or  whether  Honeyman  was 
pardoned,  I  know  not.8 


REGINA  v.  HORSEY. 

(Kent  Assizes,  1862.    3  Fost.  &  F.  287.) 

Murder,  the  indictment  laying  it  of  a  person  unknown. 

The  prisoner  had  willfully  set  fire  to  a  stack  of  straw  in  an  inclosure. 
in  which  also  was  an  outhouse  or  barn,  but  not  adjoining  to  any 
dwelling  house.  While  the  fire  was  yet  burning,  the  prisoner  was 
seized  on  the  spot,  and  the  deceased  was  seen  and  heard  to  shriek  in 
the  flames,  and  his  body  was  afterwards  found  in  the  inclosure.  It 
did  not  very  clearly  appear  whether  he  had  been  in  the  outhouse,  or 
merely  lying  on  or  by  the  side  of  the  stack.  There  was  no  evidence, 
however,  who  he  was,  and  from  this,  coupled  with  the  fact  that  he 
was  unable  to  get  out,  it  should  seem  that  he  was  in  the  barn,  and  that 
he  had  been  a  tramp  or  beggar  asleep  when  the  fire  was  kindled. 
There  wasu-no  -evidence  how  or  when  he  came  there,  nor  any  evi- 
dence that  the  prisoner  had  any  idea  that  any  one  was,  or  was  likely 
to  be,  there.  On  the  contrary,  it  rather  appeared  that  he  was  shocked 
and  surprised  to  find  that  any  one  was  in  the  flames,  and,  when  he 
saw  and  heard  the  deceased,  wanted  to  save  him.  It  did  not  exactly 
appear  how  long  the  fire  had  been  kindled  before  it  was  discovered, 
but  very  soon  after  it  was  discovered  the  deceased  was  seen  and  heard 
in  the  flames. 

3  The  Judgment  was  afterwards  reversed  on  the  ground  suggested  by  the 
Attorney  General.  See  Respnblica  v.  Honeyman,  2  Dall.  228,  1  L.  Ed.  359 
(1795). 


356  HOMICIDE.  (Ch.   12 

The  prisoner  had  already  been  convicted  of  the  arson. 
At  the  close  of  the  case, 

Bramwell,  B.,  told  the  jury  that  the  law  laid  down  was  that  where 
r.    a  prisoner,  in  the  course  of  committing  a  felony,  caused  the  death  of 
a  human  being,  that  was  murder,  even  though  he  did  not  intend  it; 
and  though  (he  said)  that  may  appear  unreasonable,  yet,  as  it  is  laid 
Vdown  as  law,  it  is  our  duty  to  act  upon  it.    The  law,  however,  is  that  a 
^Aman  is  not  answerable  except  for  the  natural  and  probable  result  of 
his  own  act;   and  therefore,  if  you  should  not  be  satisfied  that  the  de- 
ceased was  in  the  barn  or  inclosure  at  the  time  the  prisoner  set  fire  to 
the  stack,  but  came  in  afterwards,  then,  as  his  own  act  intervened  be- 
tween the  death  and  the  act  of  the  prisoner,  his  death  could  not  be 
the  natural  result  of  the  prisoner's  act.     And  in  that  view  he  ought 
to  be  acquitted  on  the  present  charge.    Verdict — Not  guilty. 


REGINA  v.  SERNfi. 

(Central  Criminal  Court,  1SS7.     1G  Cox,  C.  C.  311.) 

The  prisoners,  Leon  Serne  and  John  Henry  Goldfinch,  were  in- 
dicted for  the  murder  of  a  boy,  Sjaak  Serne,  the  son  of  the  prisoner 
Leon  Serne;  it  being  alleged  that  they  willfully  set  on  fire  a  house 
and  shop,  No.  274  Strand,  London,  by  which  act  the  death  of  the  boy 
had  been  caused. 

It  appeared  that  the  prisoner  Serne,  with  his  wife,  two  daughters, 
and  two  sons,  were  living  at  the  house  in  question,  and  that  Serne  at 
the  time  he  was  living  there,  in  midsummer,  1887,  was  in  a  state  of 
pecuniary  embarrassment,  and  had  put  into  the  premises  furniture  and 
other  goods  of  but  very  little  value,  which  at  the  time  of  the  fire  were 
not  of  greater  value  than  £30.  It  also  appeared  that  previously  to  the 
fire  the  prisoner  Serne  had  insured  the  life  of  the  boy,  Sjaak  Serne, 
who  was  imbecile,  and  on  the  1st  day  of  September,  1887,  had  in- 
sured his  stock  at  274  Strand  for  £500,  his  furniture  for  £100,  and 
his  rent  for  another  £100,  and  that  on  the  17th  of  the  same  month  the 
premises  were  burnt  down. 

Evidence  was  given  on  behalf  of  the  prosecution  that  fires  were 
scon  breaking  nut  in  several  parts  of  the  premises  at  the  same  time, 
soon  after  the  prisoners  had  been  seen  in  the  shop  together;  two  fires 
being  in  the  lower  part  of  the  house  and  two  above,  on  the  floor  whence 

cape  could  be  made  onto  the  roof  of  the  adjoining  house,  and  in 
which  part  were  the  prisoners  and  the  wife  and  two  daughters  of 
Serne,  who  escaped;  thai  on  the  premises  were  a  quantity  of  tissue 
transparencies  for  advertising  purposes,  which  were  of  a  most  in- 
flammable character,  ami  that  on  the  site  of  one  of  the  fires  was  found 
a  great  quantity  of  the  e   transparencies  close  to  other  inflammable 

itcrials;    that   the    pri  oner    Sern6,   his    wife,    and   daughters   were 


'(/Jnj  V   \AJ~tO 


Sec.  2)  murder.  357 

rescued  from  the  roof  of  the  adjoining-  house,  the  other  prisoner  being 
rescued  from  a  window  in  the  front  of  the  house,  but  that  the  boys 
were  burnt  to  death — the  body  of  the  one  being  found  on  the  floor 
near  the  window  from  which  the  prisoner  Serne,  his  wife,  and  daugh- 
ters had  escaped,  and  the  body  of  the  other  being  found  at  the  base- 
ment of  the  premises. 

Stkphen.  J-  Gentlemen,  it  is  now  my  duty  to  direct  your  atten- 
tion to  the  law  and  the  facts  into  which  you  have  to  inquire.  The 
two  prisoners  are  indicted  for  the  willful  murder  of  the  boy,  Sjaak 
Serne,  a  lad  of  about  14  years  of  age;  and  it  is  necessary  that  I 
should  explain  to  you,  to  a  certain  extent,  the  law  of  England  with 
regard  to  the  crime  of  willful  murder,  inasmuch  as  you  have  heard 
something  said  about  constructive  murder.  Now,  that  phrase,  gentle- 
men, has  no  legal  meaning  whatever.  There  was  willful  murder  ac- 
cording to  the  plain  meaning  of  the  term,  or  there  was  no  murder  at 
all  in  the  present  case.  The  definition  of  murder  is  unlawful  homicide 
with  malice  aforethought;  and  the  words  "malice  aforethought"  are 
technical.  You  must  not,  therefore,  construe  them,  or  suppose  that 
they  can  be  construed,  by  ordinary  rules  of  language.  The  words 
haveTo  be  construed  according  to  a  long  series  of  decided  cases, 
which  have  given  them  meanings  different  from  those  which  might 
be  supposed.  One  of  those  meanings  is  the  killing  of  another  person 
by  an  act  done  with  an  intent  to  commit  a  felony.  Another  meaning 
is  the  act  done  with  the  knowledge  that  the  act  will  probably  cause  the 
death  of  some  person.  Now,  it  is  such  an  act  as  the  last  which  is 
alleged  to  have  been  done  in  this  case;  and  if  you  think  that  eitker 
or  both  of  these  men  in  the  dock  killed  this  boy,  either  by  an  act  done 
with  intent  to  commit  a  felony — that  is  to  say,  the  setting  of  the  house 
on  fire  in  order  to  cheat  the  insurance  company — or  by  conduct  which, 
to  their  knowledge,  was  likely  to  cause  death,  and  was  therefore 
eminently  dangerous  in  itself,  in  either  of  these  cases  the  prisoners 
are  guilty  of  willful  murder  in  the  plain  meaning  of  the  word.  I  will 
say  a  word  or  two  upon  one  part  of  this  definition,  because  it  is  capable 
of  being  applied  very  harshly  in  certain  cases,  and  also  because,  though 
I  take  the  law  as  I  find  it,  I  very  much  doubt  whether  the  definition 
which  I  have  given,  although  it  is  the  common  definition,  is  not  some- 
what too  wide.  Now,  when  it  is  said  that  murder  means  killing  a  man 
by  an  act  done  in  the  commission  of  a  felony,  the  mere  words  cover 
a  case  like  this ;  that  is  to  say,  a  case  where  a  man  gives  another  a 
push  with  an  intention  of  stealing  his  watch,  and  the  person  so  pushed, 
having  a  weak  heart  or  some  other  internal  disorder,  dies.  To  take 
another  very  old  illustration,  it  was  said  that  if  a  man  shot  a  fowl 
with  intent  to  steal  it,  and  accidentally  killed  a  man,  he  was  to  be  ac- 
counted guilty  of  murder,  because  the  act  was  done  in  the  commis- 
sion of  a  felony.  I  very  much  doubt,  however,  whether  that  is  really 
the  law,  or  whether  the  Court  for  the  Consideration  of  Crown  Cases 
Reserved  would  hold  it  to  be  so.     The  present  case,  however,  is  not 


y-1 


f 


358  homicide.  (Ch.  12 

such  as  I  have  cited,  nor  anything  like  them.  In  my  opinion  the 
definition  of  the  law  which  makes  it  murder  to  kill  by  an  act  done  in 
the  commission  of  a  felony  might  and  ought  to  be  narrowed,  whilst 
that  part  of  the  law  under  which  the  crown  in  this  case  claim  to  have 
proved  a  case  of  murder  is  maintained.  I  think  that,  instead  of  say- 
ing that  any  act  done  with  intent  to  commit  a  felony  and  which  causes 
death  amounts  to  murder,  it  would  be  reasonable  to  say  that  any  act 
known  to  be  dangerous  to  life,  and  likely  in  itself  to  cause  death,  done 
for  the  purpose  of  committing  a  felony,  which  caused  death,  should 
be  murder.  As  an  illustration  of  this,  suppose  that  a  man,  intending 
to  commit  a  rape  upon  a  woman,  but  without  the  least  wish  to  kill  her, 
squeezed  her  by  the  throat  to  overpower  her,  and  in  so  doing  killed 
her,  that  would  be  murder.  I  think  that  every  one  would  say,  in  a  case 
like  that,  that  when  a  person  began  doing  wicked  acts  for  his  own  base 
purposes  he  risked  his  own  life  as  well  as  that  of  others.1  That  kind 
of  crime  does  not  differ  in  any  serious  degree  from  one  committed 
by  using  a  deadly  weapon,  such  as  a  bludgeon,  a  pistol,  or  a  knife. 
If  a  man  once  begins  attacking  the  human  body  in  such  a  way,  he  must 
take  the  consequences  if  he  goes  further  than  he  intended  when  he 
began.  That  I  take  to  be  the  true  meaning  of  the  law  on  the  subject. 
In  the  present  case,  gentlemen,  you  have  a  man  sleeping  in  a  house 
with  his  wife,  his  two  daughters,  his  two  sons,  and  a  servant,  and  you 
are  asked  to  believe  that  this  man,  with  all  these  people  under  his 
protection,  deliberately  set  fire  to  the  house  in  three  or  four  different 
places,  and  thereby  burnt  two  of  them  to  death.  It  is  alleged  that  he 
arranged  matters  in  such  a  way  that  any  person  of  the  most  common 
intelligence  must  have  known  perfectly  well  that  he  was  placing  all 
those  people  in  deadly  risk.  It  appears  to  me  that,  if  that  were  really 
done,  it  matters  very  little  indeed  whether  the  prisoners  hoped  the 
people  would  escape,  or  whether  they  did  not.  If  a  person  chose,  for 
some  wicked  purpose  of  his  own,  to  sink  a  boat  at  sea,  and  thereby 
caused  the  deaths  of  the  occupants,  it  matters  nothing  whether  at  the 
time  of  committing  the  act  he  hoped  that  the  people  would  be  picked 
up  by  a  passing  vessel.  He  is  as  much  guilty  of  murder,  if  the  people 
are  drowned,  as  if  he  had  flung  every  person  into  the  water  with  his 
own  hand.  Therefore,  gentlemen,  if  Serne  and  Goldfinch  set  fire  to 
this  house  when  the  family  were  in  it,  and  if  the  boys  were  by  that 
act  stifled  or  burnt  to  death,  then  the  prisoners  are  as  much  guilty  of 
murder  as  if  they  bad  stabbed  the  children.  I  will  also  add,  for  my 
own  part,  that  I  think  in  so  saying  the  law  of  England  lays  down  a 
rule  of  broad,  plain,  common  sense.  Treat  a  murderer  bow  you  will, 
award  him  what  puni  hmenl  you  choose,  it  is  your  duty,  gentlemen, 
if  you  think  him  really  guilty  of  murder,  to  say  so.     That  is  the  law 

i  in  Bei  v.  Lad)  i  Leach,  0.  C.  '•><;  niT'Ji.  when-  the  prisoner  had  several 
timet  committed  rape  on  the  body  of  b  child,  in  consequence  <>f  whlcb  she 
died,  tin-  Judges  seemed  to  doubt  whether  an  Indictment  Cor  murder  could  be 
maintained,    f'f.  Reg    v.  Greenwood,  ante,  p.  388. 


Sec.  2)  murder.  359 

of  the  land,  and  I  have  no  doubt  in  my  mind  with  regard  to  it.  There 
was  a  case  tried  in  this  court,  which  you  will  no  doubt  remember,  and 
which  will  illustrate  my  meaning.  It  was  the  Clerkenwell  Explosion 
Case  in  18G8,  when  a  man  named  Barrett  was  charged  with  causing 
the  death  of  several  persons  by  an  explosion  which  was  intended  to 
release  one  or  two  men  from  custody ;  and  I  am  sure  that  no  one  can 
say  truly  that  Barrett  was  not  justly  hanged.  With  regard  to  the  facts 
in  the  present  case,  the  very  horror  of  the  crime,  if  crime  it  was,  the 
abomination  of  it,  is  a  reason  for  your  taking  the  most  extreme  care 
in  the  case,  and  for  not  imputing  to  the  prisoners  anything  which  is 
not  clearly  proved.  God  forbid  that  I  should,  by  what  I  say,  produce 
on  your  minds,  even  in  the  smallest  degree,  any  feeling  against  the 
prisoners.  You  must  see,  gentlemen,  that  the  evidence  leaves  no  rea- 
sonable doubt  upon  your  minds ;  but  you  will  fail  in  the  performance 
of  your  duty  if,  being  satisfied  with  the  evidence,  you  do  not  convict 
one  or  both  the  prisoners  of  willful  murder,  and  it  is  willful  murder 
of  which  they  are  accused.  [The  learned  judge  then  proceeded  to  re- 
view the  evidence.  In  the  result  the  jury  found  a  verdict  of  not 
guilty  in  respect  of  each  of  the  prisoners.] 
Verdict — Not  guilty 


STATE  v.  TEVELLE. 

(Supreme  Court  of  South  Carolina,  1891.    34  S.  C  120.) 

Mr.  Justice  McIver.1  The  judge  used  this  language  in  his  charge: 
"In  the  eye  of  the  law,  self-destruction — suicide — is  an  offense.  It  is 
an  unlawful  act,  and  if  a  man  with  a  deadly  weapon  undertakes  to 
take  his  own  life  he  is  doing  an  unlawful  act,  and  if  in  the  commis- 
sion or  attempted  commission  of  that  act  he  takes  the  life  of  an  in- 
nocent party  standing  by,  then  in  the  eye  of  the  law  that  is  murder." 
To  this  instruction  there  is  no  well-founded  exception.  In  1  Russell 
on  Crimes  (3d  Am.  Ed.)  424,  it  is  said:  "Whenever  an  unlawful 
act,  an  act  malum  in  se,  is  done  in  prosecution  of  a  felonious  intention, 
and  death  ensues,  it  will  be  murder."  Now,  as  suicide  is  an  unlawful 
act,  malum  in  se,  and  is  a  felony  (1  Bish.  Cr.  Law,  §§  511-615),  there 
can  be  no  doubt  that  the  proposition  laid  down  by  the  judge  is  correct. 
We  have  carefully  examined  the  case  of  Commonwealth  v.  Mink,  123 
Mass.,  422,  reported  also  in  25  Am.  Rep.  109,  cited  by  counsel  for 
appellant  on  this  point,  and  we  do  not  think  it  is  applicable,  for  the 
reason  that  in  the  state  of  Massachusetts  they  have  a  statute  provid- 
ing that  "any  crime  punishable  by  death  or  imprisonment  in  the  state 
prison  is  a  felony,  and  no  other  crime  shall  be  so  considered."  Sui- 
cide, therefore,  is  not  a  felony  in  that  state,  as  from  the  very  nature 
of  the  case  it  cannot  be  punishable  "by  death  or  imprisonment  in  the 

i  Only  so  much  of  the  opinion  as  relates  to  suicide  is  printed. 


3G0  homicide.  (Ch.  12 

state  prison;"  and  yet  in  that  very  case  Gray,  C.  J.,  in  delivering  the 
opinion  of  the  court,  intimates  pretty  plainly  that  one  who,  in  an  un- 
successful attempt  to  commit  suicide  unintentionally  kills  another, 
who  is  endeavoring  to  prevent  it,  is  guilty  of  murder.  But  in  this 
state  we  have  no  such  statute,  and,  on  the  contrary,  section  2678  of 
the  General  Statutes  of  1882,  prescribing  the  form  of  the  verdict  of 
a  coroner's  inquest  in  a  case  of  suicide,  by  the  use  of  the  term  "feloni- 
ously," expressly  recognizes  it  as  retaining  its  common-law  character 
as  a  felony. 

The  judgment  of  this  court  is  that  the  judgment  of  the  circuit 
court  be  affirmed,  and  that  the  case  be  remanded  to  that  court  for 
the  purpose  of  having  a  new  day  assigned  for  the  execution  of  the 
sentence  heretofore  imposed.2 

See,  also,  cases  in  chapter  IV. 


SECTION  3.— STATUTORY  DEGREES  OF  MURDER. 


All  murder  which  shall  be  perpetrated  by  means  of  poison,  or 
by  lying  in  wait,  or  by  any  other  kind  of  willful,  deliberate  and  pre- 
meditated killing,  or  which  shall  be  committed  in  the  perpetration  of, 
or  attempt  to  perpetrate  any  arson,  rape,  robbery,  or  burglary,  shall 
be  deemed  murder  of  the  first  degree,  and  all  other  kinds  of  murder 
shall  be  deemed  murder  of  the  second  degree,3  and  the  jury  before 
whom  any  person  indicted  for  murder  shall  be  tried,  shall,  if  they 
find  such  person  guilty  thereof,  ascertain  in  their  verdict  whether  it 
be  murder  of  the  first  or  second  degree;  but  if  s  tch  person  shall  be 
convicted  by  confession,  the  court  shall  proceed,  by  examination  of 
witnesses,  to  determine  the  degree  of  the  crime,  and  to  give  sentence 
accordingly. 

Every  person  convicted  of  the  crime  of  murder  in  the  first  de- 
gree *  *  *  shaii  be  sentenced  to  suffer  death  by  hanging  by  the 
neck.     *     *     * 

Public  Statutes  of  Pennsylvania,  Act  1SG0 ;    P.  L.  402,  §§  74,  75. 

Every  person  duly  convicted  of  the  crime  of  murder  in  the  sec- 
mid  di  ill,  for  the  first  offense,  be  sentenced  to  undergo  an  im- 
prisonment, by  separate  or  solitary  confinement,  not  exceeding  twenty 
years,  and  for  tin-  second  offense,  for  the  period  of  his  natural  life. 
Id.  Act  L893;    1'.  L.  17. 

2  m  Grace  v.  State,  n  Tex.  Cr.  R.  198,  69  s.  W.  529  (1902),  it  is  declared 
Hint  Buiclde  is  not  :i  crime  in  Texas. 

For  tin-  history  of  the  erli t  suicide,  sit  ::  Columbia  i>.  Rev.  .'{80. 

•  The  statute  "f  1794,  <>r  which  tiiis  is  :i  re-enactment,  was  the  forerunner 
of  all  similar  legislation  in  the  United  states. 


Sec.  3)  STATUTORY    DEGREES   OF    MURDER.  3G1 

The  killing  of  a  human  being,  unless  it  is  excusable  or  justifiable, 
is  murder  in  the  first  degree,  when  committed  either 

(1)  From  a  deliberate  and  premeditated  design  to  effect  the  death 
of  the  person  killed,  or  of  another;-  or  (2)  by  an  act  imminently 
dangerous  to  others,  and  evincing  a  depraved  mind,  regardless  of 
human  life,  although  without  a  design  to  effect  the  death  of  any  in- 
dividual;  or  (3)  without  a  design  to  effect  death,  by  a  person  en- 
gaged in  the  commission  of,  or  in  an  attempt  to  commit,  a  felony, 
either  upon  or  affecting  the  person  killed,  or  otherwise;  or  (4)  when 
perpetrated  in  committing  the  crime  of  arson  in  the  first  degree. 

A  person  who  willfully,  by  loosening,  removing  or  displacing  a  rail, 
or  by  any  other  interference,  wrecks,  destroys  or  so  injures  any  car, 
tender,  locomotive,  or  railway  train,  or  part  thereof,  while  running 
upon  any  railway  in  this  state,  whether  operated  by  steam,  electricity, 
or  other  motive  power,  as  to  thereby  cause  the  death  of  a  human 
being,  is  guilty  of  murder  in  the  first  degree,  and  punishable  accord- 
ingly. 

Such  killing  of  a  human  being  is  murder  in  the  second  degree,  when 
committed  with  a  design  to  effect  the  death  of  the  person  killed,  or 
of  another,  but  without  deliberation  and  premeditation. 

Murder  in  the  first  degree  is  punishable  by  death. 

Murder  in  the  second  degree  is  punishable  by  imprisonment  for 
the  offender's  natural  life. 

Penal  Code  of  New  York,  §§  183-187. 


COMMONWEALTH  v.  DRUM. 
(Oyer  and  Terminer  of  Westmoreland,  18G8.    58  Pa.  9.) 

Justice  Agnew  charged  the  jury  as  follows:3 

In  this  case  we  have  to  deal  only  with  that  kind  of  murder  in 
the  first  degree  described  as  "willful,  deliberate,  and  premeditated. "* 
Many  cases  have  been  decided  under  this  clause,  in  all  of  which  it 
has  been  held  that  the  intention  to  kill  is  the  essence  of  the  offense. 
Therefore,  if  an  intention  to  kill  exists  it  is  willful,  if  this  intention  be 
accompanied  by  such  circumstances  as  evidence  a  mind  fully  conscious 
of  its  own  purpose  and  design  it  is  deliberate,  and  if  sufficient  time  be 
afforded  to  enable  the  mind  fully  to  frame  the  design  to  kill,  and  to 

2  Under  the  statutes  in  most  states  the  killing  of  another  than  the  person 
intended  is  held  to  be  murder  in  the  first  degree,  if  the  killing  of  the  person 
intended  would  have  been  murder  in  that  degree,  even  where  the  statute 
contains  no  express  provision  to  that  effect.  Wareham  v.  State,  25  Ohio  St 
601  (1874) ;  State  v.  Payton,  90  Mo.  220,  2  S.  W.  394  (188G) ;  Commonwealth 
v.  Breyessee,  160  Pa.  451,  28  Atl.  824,  40  Am.  St.  Rep.  729  (1894).  Contra: 
Breedlove  v.  State,  26  Tex.  App.  445,  9  S.  W.  768  (18S8). 

s  Agnew,  J.,  of  the  Supreme  Court,  presided  in  the  trial  of  this  case,  having 
been  delegated  by  that  court  for  the  purpose.  Only  so  much  of  the  case  as 
relates  to  murder  Is  printed. 


3G2  homicide.  (Ch.  12 

select  the  instrument,  or  to  frame  the  plan  to  carry  this  design  into 
execution,  it  is  premeditated.  The  law  fixes  upon  no  length  of  time 
as  necessary  to  form  the  intention  to  kill,  but  leaves  the  existence  of 
a  fully  formed  intent  as  a  fact  to  be  determined  by  the  jury,  from  all 
the  facts  and  circumstances  in  the  evidence. 

A  learned  judge  (Judge  Rush,  in  Commonwealth  v.  Richard  Smith, 
2  Wheeler,  Cr.  Cas.  [N.  Y.]  79,  86)  has  said:  "It  is  equally  true, 
both  in  fact  and  from  experience,  that  no  time  is  too  short  for  a  wicked 
man  to  frame  in  his  mind  his  scheme  of  murder  and  to  contrive  the 
means  of  accomplishing  it."  But  this  expression  must  be  qualified, 
lest  it  mislead.  It  is  true  that  such  is  the  swiftness  of  human  thought 
that  no  time  is  so  short  in  which  a  wicked  man  may  not  form  a  design 
to  kill  and  frame  the  means  of  executing  his  purpose ;  yet  this  sudden- 
ness is  opposed  to  premeditation,  and  a  jury  must  be  well  convinced 
upon  the  evidence  that  there  was  time  to  deliberate  and  premeditate. 
The  law  regards,  and  the  jury  must  find,  the  actual  intent;  that  is  to 
say,  the  fully  formed  purpose  to  kill,  with  so  much  time  for  delibera- 
tion and  premeditation,  as  to  convince  them  that  this  purpose  is  not 
the  immediate  offspring  of  rashness  and  impetuous  temper,  and  that 
the  mind  has  become  fully  conscious  of  its  own  design.  If  there  be 
time  to  frame  in  the  mind,  fully  and  consciously,  the  intention  to  kill, 
and  to  select  the  weapon  or  means  of  death,  and  to  think  and  know 
beforehand,  though  the  time  be  short,  the  use  to  be  made  of  it,  there 
is  time  to  deliberate  and  to  premeditate. 

The  proof  of  the  intention  to  kill,  and  of  the  disposition  of  mind 
constituting  murder  in  the  first  degree,  under  the  act  of  assembly  lies 
on  the  commonwealth.  But  this  proof  need  not  be  express  or  posi- 
tive. It  may  be  inferred  from  the  circumstances.  If,  from  all  the 
facts  attending  the  killing,  the  jury  can  fully,  reasonably,  and  satis- 
factorily infer  the  existence  of  the  intention  to  kill,  and  the  malice 
of  heart  with  which  it  was  done,  they  will  be  warranted  in  so  doing. 
He  who  uses  upon  the  body  of  another,  at  some  vital  part,  with  a 
manifest  intention  to  use  it  upon  him,  a  deadly  weapon,  as  an  ax.  a 
gun,  a  knife,  or  a  pistol,  must,  in  the  absence  of  qualifying  facts,  be 
presumed  to  know  that  his  blow  is  likely  to  kill,  and,  knowing  this, 
must  be  presumed  to  intend  the  death,  which  is  the  probable  and  or- 
dinary consequence  of  such  an  act.  He  who  so  uses  a  deadly  weapon, 
without  a  sufficient  cause  of  provocation,  must  be  presumed  to  do 
it  wickedly,  or  from  a  bad  heart.  Therefore  he  who  takes  the  life  of 
another  with  a  deadly  weapon,  and  with  a  manifest  design  thus  to 
use  it  upon  him,  with  sufficient  time  to  deliberate,  and  fully  to  form 
the  conscious  purpose  of  killing,  and  without  any  sufficient  reason  or 
cause  of  extenuation,  is  guilty  of  murder  in  the  first  degree. 

AH  murder  n"t  of  the  fust  degree,  is  necessarily  of  the  second  de- 
gree, and  includes  all  unlawful  killing  under  circumstances  of  de- 
pravity  <>f  heart  and  a  disposition  of  mind  regardless  of  social  duty, 
hut   where  no  intention  to  kill  exists  or  can  be  reasonably  and  fully 


Sec.  3)  STATUTORY   DEGREES   OF   MURDER.  303 

inferred.  Therefore,  in  all  cases  of  murder,  if  no  intention  to  kill  can 
be  inferred  or  collected  from  the  circumstances,  the  verdict  must  be 
murder  in  the  second  degree. 

Having-  stated  the  law  of  the  crime,  we  now  note  the  law  of  the 
evidence.  And,  first,  it  may  be  stated  as  a  general  rule  that  all  homi- 
cide is  presumed  to  be  malicious — that  is,  murder  of  some  degree — 
until  the  contrary  appears  in  evidence.  Therefore  the  burthen  of  re- 
ducing the  crime  from  murder  to  manslaughter,  where  it  is  proved 
that  the  prisoner  committed  the  deed,  lies  on  him.  He  must  show  all 
the  circumstances  of  alleviation  or  excuse  upon  which  he  relies  to 
reduce  his  offense  from  murder  to  a  milder  kind  of  homicide,  unless, 
indeed,  where  the  facts  already  in  evidence  show  it.  But  though  the 
homicide,  without  the  circumstances  of  alleviation  or  excuse,  is  pre- 
sumed to  be  murder,  it  is  not  presumed  to  be  murder  of  the  first  de- 
gree. The  presumption  against  him  rises  no  higher  than  murder  in 
the  second  degree,  until  it  is  shown  by  the  commonwealth  to  be  mur- 
der in  the  first  degree.  It  therefore  lies  on  the  commonwealth  to 
satisfy  the  jury  of  those  facts  and  circumstances  which  indicate  the 
deliberate  intention  to  kill,  and  the  cool  depravity  of  heart  and  con- 
scious purpose  which  constitute,  as  before  stated,  the  crime  of  murder 
in  the  first  degree.  When  death  ensues  from  the  use  of  a  deadly 
weapon  in  a  quarrel  or  affray,  the  jury  must  scan  closely  the  conduct 
of  both  parties,  their  former  relations  and  behavior,  and  the  current 
of  events,  the  character  of  the  weapon,  the  manner  of  its  use,  and 
circumstances  attending  it,  and  by  a  careful  survey  of  the  evidence 
must  endeavor  to  arrive  at  the  true  motive  and  cause  which  prompted 
the  fatal  blow.  Has  there  been  a  former  difficulty?  What  feeling 
did  it  produce,  and  what  design  did  it  beget?  Was  the  weapon  pre- 
pared, and  was  the  blow  given  coolly  and  without  rage,  or  was  it  a 
sudden  and  impetuous  impulse,  causing  the  act  to  be  committed  rashly 
and  without  reflection?  Were  the  parties  engaged  in  mutual  combat 
when  the  blow  was  given,  or  was  it  given  when  the  prisoner  was  not 
fighting?  Did  he  use  the  weapon  when  he  might  have  avoided  it,  or 
was  the  attack  commenced  by  the  deceased,  and  continued  by  him  until 
the  fatal  wound  was  given  ?  Was  the  prisoner  hemmed  in  and  without 
means  of  escape  ?  Was  he  in  danger  of  life  or  great  bodily  harm,  and 
did  he  give  the  blow  with  the  knife  under  the  influence  of  excitement 
and  fear  of  loss  of  life  or  the  infliction  of  great  injury  to  his  person  ? 

Again,  the  nature  of  the  weapon,  and  the  place  and  character  of 
the  wound,  are  important  to  be  considered.  Was  it  a  deadly  instru- 
ment— a  knife,  a  dagger,  or  dirk  knife?  The  deadliness  of  the  weapon 
tends  to  indicate  the  intention  with  which  it  is  used.  The  place  where 
the  thrust  is  made  also  throws  light  on  the  intention.  If  used  upon 
the  arms  or  legs,  it  may  indicate  only  an  intention  to  cut  and  wound. 
If  used  upon  a  vital  part  of  the  body,  it  may  indicate  an  intention  to 
kill.     All  these  are  most  pertinent  inquiries  to  be  made  in  this  case, 


361  HOMICIDE.  (Ch.    12 

in  order  to  apply  the  results  drawn  from  the  evidence  to  the  case  as 
presented  by  each  side. 

Starting,  then,  with  the  legal  presumption  of  innocence  in  favor 
of  the  prisoner,  until  the  proof  fairly  establishes  his  guilt,  the  first 
question  to  be  decided  is  whether  he  is  guilty  of  murder?  If  he  formed 
the  designed  to  kill  Mohigan,  if  in  consequence  of  this  purpose  he 
prepared  or  procured  a  deadly  weapon  and  carried  it  about  with  him, 
to  be  used  when  occasion  offered  itself,  and  if,  when  the  opportunity 
arose,  he  did  use  it,  it  would  be  murder.  If  at  the  time  he  did  the 
act  he  thought  of  his  purpose  to  kill  him,  and  had  time  to  think  that  he 
would  execute  it,  and  formed  fully  in  his  mind  the  conscious  design 
of  killing,  and  had  time  to  think  of  the  weapon  he  had  prepared,  and 
that  he  would  use  it,  and  accordingly  so  did  use  it,  it  would  be  murder 
of  the  first  degree.  But,  though  he  had  prepared  and  carried  the 
weapon,  intending  to  use  it,  if,  at  the  time  the  attack  was  made  upon 
him,  he  had  no  real  intention  of  killing  Mohigan — did  not  deliberate 
upon  his  act2 — but  in  the  suddenness  of  the  occasion  and  impetuous- 
ness  of  his  temper  he  intended  only  to  cut,  wound,  or  do  great  bodily 
harm  to  him,  it  would  be  murder  of  the  second  degree  only. 

But  if  the  weapon  was  not  prepared  for  the  occasion,  if  the  prisoner 
entertained  no  previous  purpose  of  killing  Mohigan  or  of  doing  him 
great  bodily  harm,  and  if  under  the  impulse  of  passion,  caused  by 
Mohigan's  blows  and  arising  when  they  were  inflicted,  the  prisoner 
struck  the  fatal  blow  without  malice,  he  is  guilty  of  manslaughter 
only,  even  though  on  the  instant  and  at  the  suddenness  of  the  provo- 
cation he  intended  to  kill  Mohigan. 

Lastly,  if  not  guilty  of  manslaughter,  was  the  killing  only  an  act 
of  self-defense?    On  this  subject  I  have  already  said  enough. 

You  will  now  take  the  case  and  render  such  a  verdict  as  the  evidence 
warrants — one  which  will  do  justice  to  the  commonwealth  and  to  the 
prisoner. 

2  In  Koonan  v.  Commonwealth,  44  Pa.  55,  84  Am.  Doc.  414  (1862),  the  court 
Bays:  "The  deliberation  and  premeditation  required  by  the  statute  are  not 
upon  the  Latent,  but  upon  the  killing.  It  is  deliberation  and  premeditation 
enough  to  form  the  intent  to  kill,  and  not  upon  the  intent  after  it  has  been 
formed." 

In  Lelghton  v.  People.  88  N.  Y.  117  (1882).  Danforth,  J.,  says:  "The  statute 
is  not  satisfied  unless  the  intention  was  deliberated  upon."  Cf.  People  v. 
Conroy,  97  N.  Y.  62  (1884);  People  v.  Schmidt,  1G8  N.  Y.  568,  Gl  N.  B.  907 
(1901). 


SCC.  3)  STATUTORY    DEGREES   OF   MURDER.  3G5 

STATE  v.  BROWN. 
(Supreme  Court  of  Oregon,  1879.     7  Ore.  18G.) 

Kelly,  C.  J.1  The  defendant  admits  that  he  committed  a  robbery 
in  the  pawnshop  of  O'Shea,  but  insists  that  the  crime  was  completed 
when  he  and  his  codefendants  forcibly  seized  the  property  described 
in  the  indictment,  and  being  completed,  he  denies  that  the  killing  of 
Joseph  was  done  in  the  commission  of  the  robbery.2  We  do  not  as- 
serfMro  the  correctness  of  this  conclusion.  If  this  interpretation  be 
given  to  that  part  of  section  506  which  declares  that  any  person  who 
kills  another  in  the  commission  of  any  rape,  arson,  or  robbery  shall 
be  guilty  of  murder,  then  the  statute  will  be  practically  nullified.  If 
this  construction  be  given  to  that  section,  then  a  man  who  commits 
a  rape  which  results  in  the  death  of  the  woman  will  insist  that,  the 
crime  having  been  perpetrated  before  his  victim  died,  he  did  not  kill 
her  in  the  commission  of  that  offense,  and  therefore  he  could  not  law- 
fully be  punished  for  the  crime  of  murder  under  that  section  of  the 
law.  When  an  incendiary  applies  his  torch  to  a  dwelling  house  and 
sets  it  on  fire,  he  has  committed  the  crime  of  arson.  If  an  hour  after- 
wards, unknown  to  him,  a  human  being  should  perish  in  the  flames, 
ought  the  perpetrator  of  the  deed  to  escape  being  punished  as  a  mur- 
derer, because  his  victim  was  burned  to  death  after  the  house  was 
aflame  ? 

The  burglary  is  complete  where  the  burglar,  with  intent  to  com- 
mit a  crime,  breaks  and  enters  a  dwelling  house  at  night.  If,  after 
having  committed  the  crime  by  entering  the  house,  he  should  slay  the 
owner  while  defending  his  property,  could  he  escape  punishment  as 
a  murderer  under  this  statute,  because  the  killing  took  place  after  the 
breaking  into  the  house? 

These  crimes  are  referred  to,  to  show  what  would  be  the  effect  of 
construing  the  statute  as  the  defendant  insists  it  ought  to  be  con- 
strued in  the  case  under  consideration.  Must  the  killing  precede  the 
commission  of  the  rape,  arson,  or  burglary  in  order  to  constitute  mur- 
der under  that  part  of  the  section?  If  so,  then  no  one  can  be  con- 
victed under  it,  for  the  killing  never  takes  place  before  the  commis- 
sion of  either  of  those  offenses. 

When  a  person  takes  with  force  or  violence  the  goods  of  another 
from  his  person  or  presence  and  against  his  will,  he  has  committed 
robbery ;  or,  to  use  the  more  exact  phraseology  of  the  old  writers  upon 
English  criminal  law,  "an  act  of  violence  constitutes  robbery,"  but  it 
does  not  necessarily  complete  the  crime.     It  constitutes  robbery  so 

i  Part  of  the  opinion  only  is  printed. 

2  The  shot  which  caused  the  death  of  Joseph  was  fired  when  the  defendant, 
In  escaping  with  the  booty,  pursued  by  a  constable,  had  run  four  blocks  of  200 
feet  each,  and  across  two  streets  of  60  feet  each.  The  shot,  fired  at  the  con- 
stable, missed  him  and  killed  Joseph,  who  was  standing  nearby. 


366  HOMICIDE.  (Ch.   12 

far  as  to  render  the  perpetrator  liable  to  conviction  for  it;  but  the 
act  of  robbery  itself  may  be  prolonged  beyond  the  time  when  that 
liability  is  fixed.  When  Brown  and  his  codefendants  took  the  property 
by  force  from  the  person  or  presence  of  O'Shea,  they  committed  the 
crime  of  robbery  so  far  as  to  render  themselves  liable  to  punishment 
for  it;  but  the  robbery  in  contemplation  of  law  was  not  completed 
until  the  taking  and  carrying  away  was  ended.  The  asportation  of 
the  goods  is  a  necessary  ingredient  of  the  robbery,  as  essential  to  com- 
plete the  crime  as  the  violence  to  the  owner  or  as  the  seizure  itself; 
and  while  anything  remains  to  be  done  by  the  robbers  to  secure  com- 
plete control  over  the  property  taken  the  robbery  is  incomplete.  The 
act  of  taking  and  carrying  away  in  the  case  of  Brown  and  his  code- 
fendants commenced  when  the  seizure  was  made  in  the  pawnshop  of 
O'Shea,  and  continued  until  they  had  unmolested  dominion  over  the 
property  which  they  had  taken.  When  they  first  acquired  that  con- 
trol the  robbery  was  ended,  and  not  before. 

From  the  statement  of  facts  in  the  bill  of  exceptions  we  are  satisfied 
that  the  asportation  was  one  continuous  act,  from  the  violent  seizure, 
when  O'Shea  was  stricken  down  senseless,  until  after  Louis  Joseph 
was  killed.  There  was  no  cessation  in  flight,  no  casting  away  or 
secreting  the  property,  no  division  of  the  spoils,  and  no  disposition  to 
relinquish  control  of  the  goods ;  but,  on  the  contrary,  there  appeared 
to  be  a  concerted  action  to  keep  possession  of  them,  and  to  defend 
that  possession,  even  if  it  became  necessary  to  take  human  life  to  se- 
cure it.8 

3  Compare  People  v.  Young,  40  Misc.  Rep.  256.  81  N.  Y.  Supp.  967  (1903). 


0J 


Sec.  4)  VOLUNTARY  MANSLAUGHTER.  3G7 

SECTION  4.— VOLUNTARY  MANSLAUGHTER. 


REGINA  v.  MAWGRIDGE. 
(Queen's  Bench,  1706.     Kelyng,  119.) 

At  the  Sessions  of  the  Peace,  held  at  Guildhall,  London,  on  the  1st 
of  July,  in  the  fifth  year  of  the  Queen,  John  Mawgridge,  of  London, 
Gent.,  was  indicted,  for  that  on  the  7th  of  June,  in  the  same  year,  he 
did  feloniously,  voluntarily,  and  of  his  malice  forethought,  make  an 
assault  upon  William  Cope,  Gent.,  and  with  a  sword  on  the  left  part  of 
his  breast,  near  the  left  pap,  did  him  strike  and  pierce,  giving  him 
thereby  a  mortal  wound,  of  which  he,  the  said  William  Cope,  did  in- 
stantly die.  Which  indictment  being  delivered  to  the  justices  of  gaol 
delivery  for  Newgate,  he  was  arraigned  thereupon,  and  pleaded  not 
guilty. 

The  jury  fa"nd  tTl1*g  gp^'a1  verdict: 

That  William  Cope  was  lieutenant  of  the  Queen's  Guards  in  the 
Tower,  and  the  principal  officer  then  commanding  there,  and  was  then 
upon  the  guard  room ;  and  that  John  Mawgridge  was  then  and  there, 
by  the  invitation  of  Mr.  Cope,  in  company  with  the  said  William  Cope 
and  with  a  certain  woman  of  Mr.  Cope's  acquaintance,  which  woman 
Mawgridge  did  then  affront,  and  angry  words  passed  between  them 
in  the  room,  in  the  presence  of  Mr.  Cope  and  other  persons  there 
present,  and  Mawgridge  there  did  threaten,  the  woman;  Mr.  Cope 
did  thereupon  desire  Mawgridge  to  forbear  such  usage  of  the  woman, 
saying  that  he  must  protect  the  woman;  thereupon  Mawgridge  did 
continue  the  reproachful  language  to  the  woman,  and  demanded  sat- 
isfaction of  Mr.  Cope,  to  the  intent  to  provoke  him  to  fight;  there- 
upon Mr.  Cope  told  him  it  was  not  a  convenient  place  to  give  him 
satisfaction,  but  at  another  time  and  place  he  would  be  ready  to  give 
it  to  him,  and  in  the  meantime  desired  him  to  be  more  civil  or  to  leave 
the  company;  thereupon  John  Mawgridge  rose  up,  and  was  going 
out  of  the  room ;  and  so  going,  did  suddenly  snatch  up  a  glass  bottle 
full  of  wine,  then  standing  upon  the  table,  and  violently  threw  it  at 
him  the  said  Mr.  Cope,  and  therewith  struck  him  upon  the  head,  and 
immediately  thereupon,  without  any  intermission,  drew  his  sword  and 
thrust  him  into  the  left  part  of  his  breast,  over  the  arm  of  one  Robert 
Martin,  notwithstanding  the  endeavor  used  by  the  said  Martin  to 
hinder  Mawgridge  from  killing  Mr.  Cope,  and  gave  Mr.  Cope  the 
wound  in  the  indictment  mentioned,  whereof  he  instantly  died.  But 
the  jury  do  further  say  that  immediately,  in  a  little  space  of  time,  be- 
tween Mawgridge's  drawing  his  sword  and  the  giving  the  mortal 
wound  by  him,  Mr.  Cope  did  arise  from  his  chair  where  he  sate,  and 
took  "another  bottle  that  then  stood  upon  the  table,  and  threw  it  at 


368  homicide.  (Ch.  12 

Mawgridge,  which  did  hit  and  break  his  head ;  that  Mr.  Cope  had  no 
sword  in  his  hand  drawn  all  the  while;  and  that  after  Mawgridge 
had  thrown  the  bottle  Mr.  Cope  spake  not.  And  whether  this  be  mur- 
der or  manslaughter,  the  jury  prays  the  advice  of  the  court. 

A  day  being  appointed  for  the  resolution  of  the  court,  and  the  mar- 
shal required  to  bring  the  prisoner  to  the  bar,  returned  he  was  escaped ; 
which  being  recorded,  the  Chief  Justice  gave  the  opinion  of  the 
judges  in  this  manner: 

This  record  being  removed  into  this  court,  the  case  hath  been  ar- 
gued before  all  the  judges ;  and  all  of  us,  except  my  Lord  Chief  Jus- 
tice Trevor,  are  of  opinion  that  Mawgridge  is  guilty  of  murder. 

This  hath  been  a  case  of  great  expectation. 

This  distinction  between  murder,  and  manslaughter  only,  is  oc- 
casioned by  the  statute  of  23  Hen.  VIII  and  other  statutes  that  took 
away  the  benefit  of  clergy  from  murder  committed  by  malice  pre- 
pensed, which  statutes  have  been  the  occasion  of  many  nice  specu- 
lations.1 

3.  I  come  now  to  the  third  matter  proposed,  which  is  to  consider 
what  is  in  law  such  a  provocation  to  a  man  to  commit  an  act  of  vio- 
lence upon  another,  whereby  he  shall  deprive  him  of  his  life,  so-a£-4o 
extenuate  the  fact,  and  make  it  to  be  a  manslaughter  only.  First, 
negatively,  what  is  not.  Secondly,  positively,  what  is.  First, -no  words 
/  of  reproach  or  infamy  are  sufficient  to  provoke  another  to  such  a  de- 
gree of  anger  as  to  strike  or  assault  the  provoking  party  with  a  sword 
or  to  throw  a  bottle  at  him  or  to  strike  him  with  any  other  weapon 
that  may  kill  him;  but  if  the  person  provoking  be  thereby  killed  it  is 
murder. 

In  the  assembly  of  the  judges,  18  Car.  II,  this  was  a  point  positively 
resolved.    Morley's  Case,  Kel.  53. 

Therefore  I  am  of  opinion  that  if  two  are  in  company  together,  and 
one  shall  give  the  other  contumelious  language  (as  suppose  A.  and 
B.).  A.,  that  was  so  provoked,  draws  his  sword  and  makes  a  pass  at 
B.  (B.  then  having  no  weapon  drawn),  but  misses  him.  Thereupon 
B.  draws  his  sword  and  passes  at  A.  And  there  being  an  interchange 
of  passes  between  them,  A.  kills  B.  I  hold  this  to  be  murder  in  A., 
,  for  A.'s  pass  at  B.  was  malicious,  and  what  B.  afterwards  did  was 
\  lawful.  But  if  A.,  who  had  been  so  provoked,  draws  his  sword,  and 
then,  before  he  passes,  B.'s  sword  is  drawn;  or  A.  bids  him  draw, 
and,  B.  thereupon  drawing,  there  happen  to  be  mutual  passes,  if  A. 
kills  B.  this  will  he  manslaughter,  because  it  was  sudden,  and  A.'s  de- 
ol  so  absolutely  to  destroy  B.  hut  to  combat  with  him,  where- 
by he  run  the  hazard  of  his  own  life  at  the  same  time.  But  if  time 
.Was  appointed   to  fighl  e   the  liexl   day),  and  accordingly  they 

do  fight,  it  is  murder  in  him  that  hills  the  other.  But  if  they  go  into 
■  die  field  immediately  and  fight,  then  but  manslaughter.     Suppose,  up- 

i  Part  of  tiio  opinion  is  omltte& 


Sec.  4)  VOLUNTARY    MANSLAUGHTER.  3P.9 

on  provoking-  language  given  by  B.  to  A.,  A.  gives  B.  a  box  on  the 
ear,  or  a  little  blow  with  a  stick,  which  happens  to  be  so  unlucky  that 
it  kills  B.,  who  might  have  some  imposthume  in  his  head,  or  other  ail- 
ment which  proves  the  cause  of  B.'s  death,  this  blow,  though  not 
justifiable  by  law,  but  is  a  wrong,  yet  it  may  be  but  manslaughter,  be- 
cause it  doth  not  appear  that  he  designed  such  a  mischief. 

2.  Secondly,  as  no  words  are  a  provocation,  so  no  affronting  ges- 
tures are  sufficient,  though  never  so  reproachful,  which  point  was 
adjudged,  3  Cro.  779,  Wats  and  Brains,  in  an  appeal  of  murder. 

There  having  been  a  quarrel  between  A.  and  B.,  and  B.  was  hurt 
in  the  fray,  and  about  two  days  after  B.  came  and  made  a  wry  mouth 
at  A.,  who  thereupon  struck  him  upon  the  calf  of  the  leg,  of  which 
he  instantly  died.  It  was  murder  in  A.  For  the  affronting  him  in  that 
manner  was  not  any  provocation  to  A.  to  use  that  violence  to  B. 

There  hath  been  another  case  which  I  fear  hath  been  the  occasion 
of  some  mistake  in  the  decision  of  questions  of  this  kind.  Jones,  W. 
432,  D.  Williams'  Case.  He  being  a  Welshman,  upon  St.  David's  Day 
having  a  leek  in  his  hat,  a  certain  person  pointed  to  a  Jack  of  Lent 
that  hung  up  hard  by,  and  said  to  him,  "Look  upon  your  country- 
man," at  which  D.  Williams  was  much  enraged,  and  took  a  hammer 
that  lay  upon  a  stall  hard  by  and  flung  at  him,  which  missed  him,  but 
hit  another  and  killed  him.  He  was  indicted  upon  the  statute  of 
stabbing.  Resolved,  he  was  not  within  that  statute,  but  guilty  of  man- 
slaughter at  common  law.  I  concur  with  that  judgment,  that  it  is 
not  within  the  statute  of  stabbing,  for  it  is  not  such  a  weapon  or  act 
that  is  within  that  statute,  neither  could  he  be  found  guilty  of  mur- 
der, but  only  of  manslaughter,  for  the  indictment  was  for  no  more. 
But  if  the  indictment  had  been  for  murder,  I  do  think  that  the  Welsh- 
man ought  to  have  been  convicted  thereof,  for  the  provocation  did 
not  amount  to  that  degree  as  to  excite  him  designedly  to  destroy  the 
person  that  gave  it  him.  ,    y 

3.  Thirdly,  if  one  man  be  trespassing  upon  another,  breaking  his  ( 
hedges  or  the  like,  and  the  owner  or  his  servant  shall  upon  sight  there- 
of take  up  an  hedge-stake  and  knock  him  on  the  head,  that  will  be 
murder,  because  it  was  a  violent  act  beyond  the  provocation,  which 
is  sufficiently  justified  by  Halloway's  Case,  who  did  not  seem  to  intend 
so  much  the  destruction  of  the  young  man  that  stole  the  wood  as  that 
he  should  endeavor  to  break  his  skull  or  knock  out  his  brains,  yet  using 
that  violent  and  dangerous  action  of  tying  him  to  the  horse-tail  ren- 
dered him  guilty  of  murder.  /\ 

Having  in  these  particulars  shown  what  is  not  a  provocation  suffi- 
cient to  alleviate  the  act  of  killing,  so  as  to  reduce  it  to  be  but  a  bare 
homicide,  I  will  now,  secondly,  give  some  particular  rules,  such  as  are 
supported  by  authority  and  general  consent,  and  show  what  are  always 
allowed  to  be  sufficient  provocations. 

1.  First,  if  one  man  upon  angry  words  shall  make  an  assault  upon      7 
another,  either  by  pulling  him  by  the  nose  or  filliping  upon  the  fore- 
Mik.Cr.L.— 24 


370  HOMICIDE.  (Ch.   12 

head,  and  he  that  is  so  assaulted  shall  draw  his  sword  and  immediately 
run  the  other  through,  that  is  but  manslaughter;  for  the  peace  is 
broken  by  the  person  killed,  and  with  an  indignity  to  him  that  received 
the  assault.  Besides,  he  that  was  so  affronted  might  reasonably  ap- 
prehend that  he  that  treated  him  in  that  manner  might  have  some  fur- 
ther design  upon  him. 

There  is  a  case  in  Stiles,  467,  Buckner's  Case.  Buckner  was  in- 
debted, and  B.  and  C.  came  to  his  chamber  upon  the  account  of  his 
creditor  to  demand  the  money.  B.  took  a  sword  that  hung  up,  and 
was  in  the  scabbard,  and  stood  at  the  door  with  it  in  his  hand  undrawn 
to  keep  the  debtor  in  until  they  could  send  for  a  bailiff  to  arrest  him. 
Thereupon  the  debtor  took  out  a  dagger  which  he  had  in  his  pocket 
and  stabbed  B.  This  was  a  special  verdict  and  adjudged  only  man- 
slaughter, for  the  debtor  was  insulted  and  imprisoned  injuriously  with- 
out any  process  of  law,  and  though  within  the  words  of  the  statute  of 
,      stabbing,  yet  not  within  the  reason  of  it. 

2.  Secondly,  if  a  man's  friend  be  assaulted  by  another,  or  engaged 
in  a  quarrel  that  comes  to  blows,  and  he,  in  the  vindication  of  his 
friend,  shall  on  a  sudden  take  up  a  mischievous  instrument  and  kill 
his  friend's  adversary,  that  is  but  manslaughter;  so  was  the  case,  12 
Rep.  87.  If  two  be  fighting  together,  and  the  friend  of  the  one  takes 
up  a  bowl  on  a  sudden  and  with  it  break  the  skull  of  his  friend's  ad- 
versary, of  which  he  died,  that  is  no  more  than  manslaughter.  So 
it  is,  if  two  be  fighting  a  duel,  though  upon  malice  prepensed,  and 
one  comes  and  takes  part  with  him  that  he  thinks  may  have  the  dis- 
advantage in  the  combat,  or  it  may  be  that  he  is  most  affected  to,  not 
knowing  of  the  malice,  that  is  but  manslaughter.  PI.  Com.  101,  John 
Vaughan  and  Salisbury. 

3.  Thirdly,  if  a  man  perceives  another  by  force  to  be  injuriously 
treated,  pressed  and  restrained  of  his  liberty,  though  the  person  abused 
doth  not  complain  or  call  for  aid  or  assistance,  and  others  out  of  com- 
passion shall  come  to  his  rescue,  and  kill  any  of  those  that  shall  so 
restrain  him,  that  is  manslaughter,  18  Car.  II,  adjudged  in  this  court 
upon  a  special  verdict  found  at  the  Old  Bailey  in  the  case  of  one 
1 1  ugett,  18  Car.  II.  A.  and  others,  in  the  time  of  the  Dutch  war, 
without  any  warrant  impressed  B.  to  serve  the  king  at  sea.  B.  quietly 
submitted,  and  went  off  with  the  press  masters.  Hugett  and  the 
others  pursued  them  and  required  a  sight  of  their  warrant ;  but  they 
showed  a  piece  of  paper  that  was  not  a  sufficienl  warrant.  There- 
upon Hugett  with  the  others  drew  their  swords,  and  the  press  masters 
theirs,  and  so  there  was  a  combat,  and  those  who  endeavored  to  rescue 
the  pressed  man  killed  one  of  the  pretended  press  masters.  This  was 
but  manslaughter;  fir  when  the  liberty  of  one  sub j eel  is  invaded  it 
affects  all  the  re  i.     It  is  a  provocation  i<»  all  people,  as  being  of  ill 

ample  and  pernicious  consequence.  All  the  judges  of  the  King's 
Bench,  viz.,  Keiling,  Twisden,  Wyndham  and  Moreton,  were  of  opin- 
ion that  it  was  murder,  because  he  meddled  in  a  matter  in  which  he 


Sec.  4) 


VOLUNTARY    MANSLAUGHTER. 


371 


was  not  concerned.  But  the  other  eight  judges  of  the  other  courts 
conceived  it  only  manslaughter,  to  which  the  judges  of  the  King's 
Bench  did  conform,  and  gave  judgment  accordingly. 

4.  Fourthly,  when  a  man  is  taken  in  adultery  with  another  man's 
wife,  if  the  husband  shall  stab  the  adulterer,  or  knock  out  his  brains, 
this  is  bare  manslaughter;  for  jealousy  is  the  rage  of  a  man,  and 
adultery  is  the  highest  invasion  of  property.  1  Vent.  158;  Raymond, 
213,  Manning's  Case. 

If  a  thief  comes  to  rob  another,  it  is  lawful  to  kill  him.  And  if  a 
man  comes  to  rob  a  man's  posterity  and  his  family,  yet  to  kill  him  k 
manslaughter.  So  is  the  law,  though  it  may  seem  hard  that  the  killing 
in  the  one  case  should  not  be  as  justifiable  as  the  other.  20  Leviticus, 
v.  10.  If  one  committeth  adultery  with  his  neighbor's  wife,  even  he 
the  adulterer  and  the  adulteress  shall  be  put  to  death.  So  that  a  man 
cannot  receive  a  higher  provocation.  But  this  case  bears  no  propor- 
tion with  those  cases  that  have  been  adjudged  to  be  only  manslaughter, 
and  therefore  the  court,  being  so  advised,  doth  determine  that  Maw- 
gridge  is  guilty  of  murder.^  More  might  be  said  upon  this  occasion, 
yet  this  may  at  present  suffice  to  set  the  matter  now  in  question  in 
its  true  light,  to  show  how  necessary  it  is  to  apply  the  law  to  exter- 
minate such  noxious  creatures.  Upon  this  condition  the  court  did 
direct  that  process  should  be  issued  against  Mawgridge,  and  so  to  pro- 
ceed to  outlawry  if  he  cannot  be  retaken  in  the  meantime. 


/ 


STATE  v.  HILL. 

(Supreme  Court  of  North  Carol iua,  1S39.    20  N.  C.  629.  34  Am.  Dec.  396.) 

The  prisoner  was  indicted  for  murder,  at  Wake,  on  the  last  circuit, 
before  his  honor,  Judge  Saunaers.  \  *' 

The  jury  returned  a  verdict  of  guilty,  and,  sentence  of  death  be- 
ing pronounced  upon  the  prisoner,  he  appealed. 

Gaston,  Judge.1  The  jury  were  instructed  "that  if  the  prisoner 
gave  the  first  blow,  ancTwas"  "then ~  cut  by  the  deceased,  although  he 
might  have  been  agitated  by  excitement  and  anger,  yet  if  they  col- 
lected from  what  he  said  and  did,  when  or  just  before  he  gave  the 
mortal  blow,  that  in  fact  he  was  possessed  of  deliberation  and  reflec- 
tion, so  as  to  be  sensible  of  what  he  was  then  about  to  do,  and  did 
the  act  intentionally,  it  was  murder."  This  proposition,  as  we  un- 
derstand it,  and  as  we  must  believe  it  to  have  been  understood  by  the 
jury,  we  are  very  confident  cannot  be  sustained. 

~The  proposition  supposes  that  the  first  assault  was  made  by  the 
prisoner  without  malice,  and  that  the  fatal  wound  was  given  while 
under  the  influence  of  indignation  and  resentment,  excited"  by  the  ex- 

i  Part  of  this  case  is  omitted. 


372  homicide.  (Ch.  12 

cessive  violence  with  which  he  had  been  in  turn  assailed  by  the  de- 
ceased ;  but  it  refuses  to  the  prisoner  the  indulgence  which  the  law 
accords  to  human  infirmity  suddenly  provoked  into  passion,  if  such 
passion  left  to  him  so  much  of  deliberation  and  reflection  as  to  enable 
him  to  know  that  he  was  about  to  take,  and  to  intend  to  take,  the  life 
of  his  adversary.  No  doubt  can  be  entertained,  and  it  is  manifest  that 
none  was  entertained",  by  his  honor,  but  that  the  excessive  violence 
of  the  deceased,  immediately  following  upon  the  first  assault,  consti- 
tuted what  the  law  deems  a  provocation  sufficient  to  excite  furious 
passion  in  men  of  ordinary  tempers.  The  case  does  not  state  that 
the  first  blow  given  by  the  prisoner  was  such  as  to  endanger  life  or 
to  threaten  great  bodily  harm,  nor  that  it  was  immediately  followed 
up  by  further  efforts  or  attempts  to  injure  the  deceased.  It  must  be 
taken  to  have  been  a  battery  of  no  very  grievous  kind,  and  it  justified 
the  deceased  in  resorting  to  so  much  force  on  his  part  as  was  reason- 
ably required  for  his  defense ;  and  in  estimating  the  quantum  of  force 
which  might  be  rightfully  thus  used  the  law  will  not  be  scrupulously 
exact.  But,  when  an  assault  is  returned  with  a  violence  manifestly 
disproportionate  to  that  of  the  assault,  the  character  of  the  combat 
is  essentially  changed,  and  the  assaulted  becomes  in  his  turn  the  as- 
sailant. Such,  according  to  the  case,  was  the  state  of  this  affray,  when 
the  mortal  wound  was  given.  To  avenge  a  blow,  the  deceased  at- 
tacked the  prisoner  with  a  knife,  made  three  cuts  at  him,  and  gave 
him  a  severe  wound  in  the  abdomen.  If  instantly  thereupon,  in  the 
transport  of  passion  thus  excited,  and  without  previous  malice,  the 
prisoner  killed  the  deceased,  it  would  have  been  a  clear  case  of  man- 
slaughter. Not  because  the  law  supposes  that  this  passion  made  him 
unconscious  of  what  he  was  about  to  do,  and  stripped  the  act  of  kill- 
ing of  an  intent  to  commit  it,  but  because  it  presumes  that  passion 
disturbed  the  sway  of  reason  and  made  him  regardless  of  her  admoni- 
tions. It  does  not  look  upon  him  as  temporarily  deprived  of  intellect, 
and  therefore  not  an  accountable  agent,  but  as  one  in  whom  the  ex- 
ercise of  judgment  is  impeded  by  the  violence  of  excitement,  and  ac- 
countable therefore  as  an  infirm  human  being.  We  nowhere  find  that 
the  passion  which  in  law  rebuts  the  imputation  of  malice  must  be  so 
overi>owcring  as  for  the  time  to  shut  out  knowledge  and  destroy  voli- 
tion. All  the  writers  concur  in  representing  this  indulgence  of  the  law 
to  be  a  condescension  to  the  frailty  of  the  human  frame,  which,  during 
the  furor  brevis,  renders  a  man  deaf  to  the  voice  of  reason,  so  that, 
although  the  act  done  was  intentional  of  death,  it  was  not  the  result 
of  malignity  of  heart,  but  imputable  to  human  infirmity. 
The  proper  inquiry  to  have  been  submitted  to  the  jury  on  this  part 

of  the  case  was  whether  a  sufficient  time  had  elapsed  after  the  prisoner 
was  stabbed,  and  before  he  gave  the  mortal  wound,  for  passion  to 
subside  and  n  me  her  dominion;    for  it  is  only  during  the 

temporary  dethronement  of  reason  by  passion  that  this  allowance  is 


Sec.  4)  VOLUNTARY    MANSLAUGHTER.  373 

made  for  man's  frailty.2  And  in  prosecuting  this  inquiry  every  part 
of  the  conduct  of  the  prisoner,  as  well  words  as  acts  tending  to  show 
deliberation  and  coolness  on  the  one  side,  or  continued  anger  and  re- 
sentment on  the  other,  was  fit  to  be  considered,  in  order  to  conduct 
the  jury  to  a  proper  result. 
Judgment  to  be  reversed. 


STATE  v.  McCANTS. 

(Court  of  Appeals  of  South  Carolina,  1843.     1  Speers,  384.) 

The  indictment  charged  the  prisoner  with  having  murdered  Wil- 
liam Ladd  on  the  19th  of  March,  1842,  by  stabbing  him  to  the  heart 
with  a  pocket  knife. 

The  jury  found  a  verdict  of  guilty,  but  recommended  to  executive 
clemency. 

The  defendant  appealed  on  the  following  grounds: 

(1)  Because  the  fatal  blow  was  given  in  heat  and  passion,  rea- 
sonably excited  during  a  sudden  affray,  and  therefore  the  killing  was 
only  manslaughter. 

(2)  Because  his  honor  charged  the  jury  that  the  material  question   (\yyc_-* 
for  thenTwas  whether  "the  interval  between  the  first  and  second  com- 
bat" afforded  time  for  a  reasonable  man  to  cool,  whereas  it  is  respect- 
fully submitted  the  jury  should  have  been  charged  to  inquire  whether 

the  suspension  of  reason  arising  from  sudden  passion  excited  during 
the  affray  continued  down  to  the  time  of  the  mortal  stroke  given,  or 
whether  there  were  any  such  marks  of  deliberation  as  showed  that 
the  prisoner  did  cool  before  giving  the  mortal  stroke.3 

Curia,  per  Wardlaw,  J.  The  second  and  third  grounds  of  ap- 
peal seem  to  show  that  the  counsel  for  the  prisoner  did  not  under- 
stand the  charge  of  the  presiding  judge  precisely  as  it  has  been  re- 
ported; but  the  objections  which  have  been  supposed  to  lie  against 
the  charge  as  reported,  in  relation  to  the  question  of  cooling  and  the 
consideration  which  should  be  given  to  drunkenness,  have  been,  under 
these  grounds  fully  discussed.  It  has  been  argued,  under  the  second 
ground,  that  the  sole  question  as  to  cooling  is  whether  the  suspension 
of  reason  continued  down  to  the  time  of  the  mortal  stroke,  and  that 
so  it  must  have  done  if  no  marks  of  deliberation  showed  that  the 
prisoner  had  cooled;  whereas,  the  charge  (not,  however,  stating  the 
question  of  reasonable  time  to  be  the  only  question,  or,  as  above  others, 
the  material  question),  held  that,  as  to  cooling,  the  questions  were, 

2  "A  transport  of  passion,  which  deprives  of  the  power  of  self-control,  is 
in  a  modified  or  restricted  sense,  a  dethronement  of  the  reasoning  faculty, 
a  divestment  of  its  sovereign  power ;  but  an  entire  dethronement  is  a  depriva- 
tion of  the  intellect  for  the  time  being."  Clopton,  J.,  in  Smith  y.  State,  83 
Ala.  28,  3  South.  551  (1S87). 

«  Part  of  this  case  is  omitted- 


. 


374:  homicide.  (Ch.  12 

did  the  prisoner  cool,  or  was  there  time  for  a  reasonable  man  to  have 
cooled?  and  that,  reference  being  had  for  a  standard  to  ordinary  hu- 
man nature,  the  time  allowed  for  cooling  was  the  time  in  which  an 
ordinarily  reasonable  man,  under  like  circumstances,  would  cool.  Any 
signs  of  deliberation  or  reflection  would  be  evidence  of  cooling;  but 
apart  from  all  such  signs,  after  a  sufficient  lapse  of  time,  the  law  will 
presume  opportunity  for  cooling.  "If,  from  any  circumstance  what- 
ever, it  appears  that  the  party  reflected,  deliberated,  or  cooled  any  time 
before  the  fatal  stroke  given,  or  if,  in  legal  presumption,  there  was 
time  or  opportunity  for  cooling,  the  killing  will  amount  to  murder-" 
1  E.  P.  C.  252 ;  1  Russ.  on  Cr.  442.  "Provocation  will  not  avail,  how 
grievous  soever  it  may  have  been,  if  it  appears  that  there  was  an  in- 
terval of  reflection,  or  a  reasonable  time  for  the  blood  to  have  cooled 
before  the  deadly  purpose  was  effected."    1  Russ.  on  Cr.  423. 

Whether  the  lapse  of  time  be  taken  as  only  evidence  of  cooling, 
or  as  a  substitute  for  it,  which  takes  away  the  peculiar  indulgence  of 
the  law  for  sudden  transport  of  passion,  it  was  proper  to  submit  the 
question  in  the  double  form:  Did  the  prisoner  cool?  or  was  there  rea- 
sonable time  for  his  cooling?  An  affirmative  answer  to  either  of  which 
would  be  fatal  to  his  attempt  at  mitigation.  In  the  case  of  Rex  v.  One- 
bey,  1  Ld.  Ray.  1485,  from  which  East,  Russell,  and  other  elementary 
writers  have  drawn  their  doctrine  on  this  subject,  time  seems  to  have 
been  considered  only  amongst  the  other  evidences  of  cooling;  and  in 
the  charge  before  us  it  is  said  that  from  the  reasonable  time  cooling 
and  malice  will  be  inferred.  Onebey's  Case,  however,  decides  that 
whether  the  accused  cooled  is  not  a  question  of  fact,  but  a  question 
of  law,  to  be  decided  by  the  court,  upon  consideration  of  the  length 
of  time  and  all  other  circumstances  found  by  the  jury  upon  a  special 
verdict;  and  in  accordance  is  the  case  of  Regina  v.  Fisher,  8  Car.  & 
P.  182,  34  E.  C.  L.  R.  345,  in  the  Central  Criminal  Court,  before  Mr. 
Justice  Park,  Mr.  Baron  Parke  and  Mr.  Recorder  Law,  where  what 
time  shall  be  reasonable  is  said  to  be  for  the  court,  the  jury  having 
found  the  length.  The  legal  conclusion  that  the  accused  had  cooled, 
deduced  by  the  court  from  the  circumstances,  is  only,  in  other  words, 
the  conclusion  that  he  should  have  cooled — that  the  circumstances  are 
<ueh,  as  in  law,  will  imply  deliberation.  Was  he  cool  means,  not  was 
there  in  fact  a  gentle  flowing  of  the  blood  which  had  been  hurried  in 
irculation,  but  means  was  there,  in  law,  malice  in  his  act;  and 
the  reasonable  time  is  then  not  mere  evidence  of  actual  cooling,  or 
cooling  in  its  popular  sense,  but  is  in  itself  a  circumstance  which  in 
law  stands  in  place  of  such  actual  cooling  and  is  equally  significant  of 
malice.  TTc  who  has  received  a  sufficient  legal  provocation,  such  as 
might  have  mitigated  t<>  manslaughter  a  mortal  blow  proceeding  from 
it  and  given  instantly,  would  not  be  less  than  a  murderer  if  he  should 
remain  in  apparently  undiminished  fury  for  a  length  of  time,  unrea- 
sonable under  the  circumstances,  and  then  kill.  By  lashing  himself 
into  greater  fury  by  outward  demonstrations  of  passion,  no  one  should 


Sec.  4)  VOLUNTARY    MANSLAUGHTER.  375 

obtain  upon  trial  any  advantage  over  another,  who,  in  like  circum- 
stances, should  in  reasonable  time  master  his  passions,  or  at  least  cover 
with  a  calm  exterior  the  fires  which  inwardly  consume  him.  The 
law,  in  extending  its  indulgence  to  human  frailty,  does  not  look  merely 
to  the  fact  that  the  act  has  proceeded  from  the  violent  impulse  of 
anger  outstripping  the  tardier  operations  of  reason.  It  asks  whether 
the  anger  has  been  provoked  by  sufficient  cause,  whether  it  has  been 
proportioned  to  the  cause,  whether  it  has  been  restrained  from  bar-  i 
barous  punishment,  and  whether  it  has  been  made  to  yield  to  the  em- 
pire of  reason  in  proper  time.  No  anger,  however  violent,  will  miti-/ 
gate  the  guilt  of  him  who  snatches  a  deadly  weapon  upon  provocation I 
by  words  only,  no  matter  how  hard  to  be  borne.  Even  where  the 
provocation  has  been  what  is  called  legal,  but  slight,  and  the  death  of 
the  aggressor  has  ensued  from  an  instant  act  of  resentment,  no  matter 
how  uncontrollable  the  passion,  the  inquiry  is,  was  the  act  of  resent- 
ment in  reasonable  proportion  to  the  provocation?2  And  where  an- 
ger, excited  by  blows,  has  according  to  the  frequent  course  of  nature 
increased  with  its  gratification,  and  blows  given  in  return  have  re- 
doubled upon  blows,  malice  would  be  presumed  from  unreasonable 
and  disproportionate  excess  of  punishment.  So,  when  anger,  pro- 
voked by  a  cause  sufficient  to  mitigate  an  instantaneous  homicide,  has 
been  continued  beyond  the  time  which,  in  view  of  all  the  circumstan- 
ces of  the  case,  may  be  deemed  reasonable,  the  evidence  is  found  of 
that  depraved  spirit  in  which  malice  resides. 

The  law  regards  men  as  rational  creatures,  and  expects  them  to 
subject  their  passions  to  reasonable  control.  The  abatement  of  its 
reign,  which  it  grants  to  such  frailty  as  is  common  to  human  nature, 
it  does  not  extend  to  unreasonable  and  excessive  indulgences  of  pas- 
sion. The  standard  of  what  is  reasonable  is  ordinary  human  nature. 
to  be  applied  by  the  court  if  all  the  facts  and  circumstances  be  found 
by  a  special  verdict  or  to  be  applied  by  the  jury  in  giving  a  general 

2  "If  a  man  should  kill  a  woman  or  a  child  for  a  slight  blow,  the  provoca- 
tion would  be  no  justification;  and  I  very  much  question  whether  any 
blow  inflicted  by  a  wife  on  a  husband  would  bring  the  killing  of  her  below 
murder.  Upon  this  view  I  have  always  doubted  Stedman's  Case,  in  which, 
for  a  woman's  blow  in  the  face  with  an  iron  patten,  given  to  a  soldier  in  re- 
turn for  words  of  gross  provocation,  he  gave  her  a  blow  with  the  pummel 
of  his  sword  on  her  breast,  and  then  ran  after  her  and  stabbed  her  in  the 
back,  and  the  crime  was  held  to  be  only  manslaughter.  R.  v.  Stedman,  Fost. 
292.  Where  a  blow  is  cruel  or  unmanly,  the  provocation  will  not  excuse  it." 
Gibson.  C.  J.,  in  Commonwealth  v.  Mosler,  4  Pa.  268  (1846). 

"In  the  light  of  the  evidence  in  this  case  the  doctrine  of  'cooling  time'  does 
not  apply.  The  deceased  did  not  offer  to  strike  the  prisoner,  and  therefore 
gave  him  no  legal  provocation.  'Words  of  reproach  and  of  insult,  however 
grievous,  do  not  make  legal  provocation,  nor  do  indecent  or  provoking  actions, 
or  gestures  expressive  of  contempt  or  reproach,  unless  accomplished  with 
indignity  to  the  person,  as  by  a  battery,  or  an  assault,  at  least.  *  *  *  In 
the  absence  of  such  provocation,  there  is  in  the  eye  of  the  law  no  adequate 
cause  for  such  furious  state  of  mind  of  the  prisoner  and  excessive  heat  of 
blood  as  will  mitigate  the  crime  from  murder  to  manslaughter.  In  such  a 
case  there  is  no  occasion  for  cooling  time.'  State  v.  McNeill,  92  N.  C.  812." 
Montgomery,  J.,  in  State  v.  Spivey,  132  N.  C.  991,  43  S.  E.  475  (1903). 


i  ;<7 


376  homicide.  (Ch.  12 

verdict.  As  to  the  reasonable  time  in  which  cooling  should  ensue 
after  provocation,  no  precise  rule  can  be  given.  In  Onebey's  Case, 
the  cooling  was  held  to  take  place,  not  when  calmness  has  been  re- 
stored, but  when  that  fury  of  passion  which,  for  a  brief  time,  takes 
away  the  reasoning  faculties,  has  abated,  or  that  the  accused  reflects; 
and  in  Lord  Morley's  Case,  cited  by  Lord  Raymond,  it  was  held  that, 
to  make  it  murder,  the  time  need  be  such  time  only  as  it  may  appear 
not  to  be  done  on  the  first  passion,  and  that  an  observation  made  as  to 
the  conveniency  of  a  place  for  fighting,  showed  the  temper  to  be  such 
as  constituted  murder. 

In  all  cases  where  the  time  of  cooling  may  be  considered,  whether 
the  time  be  regarded  as  evidence  of  the  fact  of  cooling,  or  as  con- 
stituting of  itself,  when  reasonable,  legal  deliberation,  the  whole  cir- 
cumstances are  to  be  taken  into  the  estimate  in  determining  whether 
the  time  be  reasonable.  The  nature  of  the  provocation,  the  prisoner's 
physical  and  mental  constitution,  his  condition  in  life  and  peculiar  situ- 
ation at  the  time  of  the  affair,  his  education  and  habits  (not  of  them- 
selves voluntary  preparations  for  crime),  his  conduct,  manner,  and 
conversation  throughout  the  transaction — in  a  word,  all  pertinent  cir- 
cumstances— may  be  considered,  and  the  time  in  which  an  ordinary 
man  in  like  circumstances  would  have  cooled  is  the  reasonable  time. 

The  motion  is  dismissed. 

Richardson,  O'Neall,  Evans,  and  Butler,  J  J.,  concurred. 


STATE  v.  GRUGIN. 

(Supreme  Court  of  Missouri,  1SDS.     147  Mo.  39,  47  S.  W.  IOjS,  42  L.  R.  A. 
774,  71  Am.  St.  Rep.  o.jo.) 

Sherwood,  J.1  The  salient  topics  which  this  record  presents,  and 
on  which  our  attention  will  be  centered,  are  these: 

First.  Did  the  outrage  perpetrated  by  Hadley  on  his  young  sister- 
in-law  Alma,  defendant's  daughter,  authorize  and  require  a  submis- 
sion to  the  jury  of  the  question  whether  defendant's  shooting  Hadley 
was  done  in  "hot  blood,"  and  therefore  only  manslaughter? 

Second.  Did  the  insolent  and  defiant  reply  of  Hadley,  when  ques- 
tioned by  defendant  as  to  the  vile  deed  he  had  done  to  the  latter's 
daughter,  authorize  and  require  a,  submission  to  the  jury  of  the  ques- 
tion whether  the  words  used  by  Hadley  were  such  as  to  generate  a 
sufficient  or  reasonable  provocation,  so  as  to  produce  hot  blood,  and 
thus  lower  the  grade  of  the  homicide  in  either  degree  to  manslaughter? 

Third.  Whether  certain  instructions  given  at  the  instance  of  the 
state  should  have  been  refused? 

Fourth.  Whether  a  certain  instruction  asked  by  defendant  should 
have  been  given,  either  as  asked  or  in  a  modified  form? 

i  Arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


Sec.  4)  VOLUNTARY   MANSLAUGHTER.  377 

1.  In  discussing  the  first  question  propounded,  we  are  necessarily 
brought  into  contact  with  that  line  of  cases  which  treat  of  "hot  blood" 
and  how  it  may  be  engendered.  Among  other  familiar  instances  fur- 
nished by  me  books  are  those  where  a  husband  finds  a  man  in  the  act 
of  adultery  with  his  wife  and  immediately  kills  him  or  her.  That  is 
accounted  but  manslaughter,  and  it  is  the  lowest  degree  of  that  of- 
fense; and  therefore  in  such  a  case  the  court  directed  the  burning 
in  the  hand,  to  be  gently  inflicted,  because  there  could  not  be  a  greater 
provocation.     Sir  T.  Raym,  212. 

According  to  the  old  books,  such  discovery  of  the  wife's  adultery 
must  have  been  made  in  the  very  act,  and  the  killing  must  have  been 
done  "directly  on  the  spot"  in  order  to  reduce  the  homicide  to  man- 
slaughter. 4  Black.  Com.  191;  3  Greenl.  Ev.  (14th  Ed.)  §  122.  The 
husband  must  have  "ocular  inspection  of  the  act,  and  only  then." 
Pearson's  Case,  2  Lew.  216;    1  Hale,  P.  C.  487. 

But  since  the  law,  as  other  sciences,  makes  progress,  it  is  no  longer 
accounted  necessary  that  a  husband  should  have  "ocular  inspection," 
etc.  It  suffices  if  the  provocation  be  so  recent  and  so  strong  that  the 
husband  could  not  be  considered  at  the  time  master  of  his  own  under- 
standing. State  v.  Holme,  54  Mo.  153.  In  the  case  just  cited,  the 
case  of  Maher  v.  People,  10  Mich.  212,  81  Am.  Dec.  781,  was  ap- 
proved, the  facts  in  that  case  having  been  these:  "The  prisoner  of- 
fered evidence  tending  to  show  the  commission  of  adultery  by  H. 
with  the  prisoner's  wife.  Within  half  an  hour  before  the  assault 
the  proof  showed  that  the  prisoner  saw  them  going  into  the  woods 
together  under  circumstances  calculated  strongly  to  impress  upon  his 
mind  the  belief  of  an  adulterous  purpose;  that  he  followed  after 
them  to  the  woods;  that  they  were  seen  not  long  after  coming  from 
the  woods,  and  that  the  prisoner  followed  on  in  hot  pursuit,  and  was 
informed  on  the  way  that  they  had  committed  adultery  the  day  be- 
fore; that  he  followed  H.  into  a  saloon  in  a  state  of  excitement,  and 
there  committed  the  assault.  The  court  held  that  the  evidence  was 
proper,  as  from  it  it  would  have  been  competent  for  the  jury  to  find 
that  the  act  was  committed  in  consequence  of  the  passion  excited  by 
the  provocation,  and  in  a  state  of  mind  which  would  have  given  to 
the  homicide,  had  death  ensued,  the  character  of  manslaughter  only. 
The  evidence  showed  that  the  prisoner,  in  following  H.  from  the 
woods,  was  laboring  under  great  excitement,  that  when  a  friend  told 
him  on  the  way  what  had  happened  the  day  before  his  passion  was 
increased,  and  that  when  he  arrived  at  the  saloon  the  perspiration  had' 
broken  out  all  over  his  face."  And  in  that  case  it  was  ruled  that  the 
question  as  to  what  is  an  adequate  or  reasonable  provocation  is  one 
of  fact  for  the  jury,  and  so,  also,  is  the  question  whether  a  reasonable 
time  had  elapsed  for  the  passion  to  cool  and  reason  to  resume  its  con- 
trol. 

In  this  connection  it  must  not  be  forgotten  what  a  high  estimate 
the  men  of  all  nations  have  placed  on  the  chastity  of  their  women 


378  homicide.  (Ch.  12 

and  on  the  inviolability  of  their  persons.  Some  of  the  fiercest  tumults 
and  wars  have  had  their  origin  in  assaults  made  on  the  modesty  or 
honor  of  women.  Notwithstanding  this,  the  law  as  yet  has  made  no 
provision  and  provided  no  punishment  for  many  such  instances ;  nay 
more,  a  brother  who  detected  a  man  in  the  act  of  adultery  with  his 
sister,  and  thereupon  stabbed  him  to  death,  was  by  the  Supreme  Court 
of  Pennsylvania  adjudged  guilty  of  murder.  Lynch  v.  Common- 
wealth, 77  Pa.  205. 

Lord  Macauley,  in  his  "Report  on  the  Indian  Code,"  very  forcibly 
points  out  the  gross  injustice  of  accounting  a  husband  who  slays  an 
adulterer,  found  with  his  wife,  only  guilty  of  manslaughter,  and  yet 
holds  a  high-spirited  brother,  who  in  a  paroxysm  of  rage  kills  the 
seducer  of  his  sister,  guilty  of  murder.  Proceeding  further,  Lord 
Macauley  says:  "There  is  another  class  of  provocations  which  Mr. 
Livingston  does  not  allow  to  be  adequate  in  law,  but  which  have  been, 
and  while  human  nature  remains  unaltered  will  be,  adequate  in  fact 
to  produce  the  most  tremendous  effects.  Suppose  a  person  to  take  in- 
decent liberties  with  a  modest  female  in  the  presence  of  her  father, 
her  brother,  her  husband,  or  her  lover,  such  an  assault  might  have 
no  tendency  to  cause  pain  or  danger,  yet  history  tells  us  what  effects 
have  followed  from  such  assaults.  Such  an  assault  produced  the 
Sicilian  Vespers.  Such  an  assault  called  for  the  memorable  blow 
of  Wat  Tyler.  It  is  difficult  to  conceive  any  class  of  cases  in  which 
the  intemperance  of  anger  ought  to  be  treated  with  greater  lenity. 
So  far,  indeed,  should  we  be  from  ranking  a  man  who  acted  like 
Tyler  with  murderers,  that  we  conceive  that  a  judge  would  exercise 
a  sound  discretion  in  sentencing  such  a  man  to  the  lowest  punishment 
fixed  by  the  law  for  manslaughter." 

When  testifying  before  the  "Homicide  Amendment  Committee"  in 
1874,  Blackburn,  J.,  said :  "Supposing  a  man  is  actually  keeping 
company  with  a  young  woman,  she  cannot  be  called  his  sister  or  his 
ward,  or  even  under  his  protection ;  and  suppose  a  ruffian  steps  for- 
ward and  in  the  presence  of  the  other  pulls  up  her  petticoats  and 
catches  hold  of  her,  and  the  other  struck  him  down  and  the  man  died. 
That  case  was  before  Mr.  Justice  Pattison  at  York.  Somehow  or 
other  the  jury  and  Mr.  Justice  Pattison  contrived  to  acquit  him  al- 
her.  T  think  that  was  provocation  that  would  reduce  it  to  man- 
slaughter." 

•  If,  as  Bishop  states,  the  "law  accepts  human  nature  as  God  has 
made  it,  or  as  it  manifests  itself  in  the  ordinary  man,  and  every  sort 
of  conduct  in  others  which  commonly  does  in  fact  so  excite  the  pas- 
sion- of  the  mass  of  men  as  practically  to  enthrall  their  reason,  the 
law  holds  to  be  adequate  cause,"  I  do  not  see  how  defendant  is  to 
the  1"  ii<  fit  of  that  theory  in  the  painful  circumstances  of 
the  present  case.  To  him,  in  contemplation  of  law,  the  foul  wrong 
done  his  child,  though  not  revealed  to  him  until  the  morning  of  the 
day  of  the  homicide,  was  a!    fresh  and  potent  to  stir  his  blood  as  if 


Sec.  4)  VOLUNTARY  MANSLAUGH'I  I  SB.  379 

done  on  that  very  morning.  If  this  be  the  case,  then  the  law,  while 
it  softens  the  punishment  of  a  husband  who  slays  an  adulterer  found 
in  his  bed,  surely  cannot  be  so  illogical  as  to  deny  a  like  result  to  a 
father  who  slays  the  ravisher  of  his  young  daughter.  Indeed,  it  might 
well  be  said  that  in  the  latter  case  there  should  be  greater  lenity 
shown  by  the  law  than  in  the  former,  because  the  wife  has  been  a 
consenting  party  to  the  homicide-producing  adultery.  The  trial  court, 
while  it  admitted  the  evidence  which  preceded  the  killing,  yet  by  its 
instructions  denied  that  such  evidence  had  any  effect  to  lower  the 
grade  of  defendant's  crime  from  either  degree  of  murder  to  man- 
slaughter. If  the  evidence  referred  to  was  to  be  denied  any  effect, 
then  it  should  not  have  been  admitted.  The  instructions  for  the  state 
under  review  were  also  erroneous,  in  that  they  dictated  to  the  jury  as 
a  matter  of  law  what  was  a  sufficient  or  reasonable  provocation  and 
what  a  sufficient  cooling  time. 

2.  The  second  interrogatory  is  next  for  consideration.  It  embodies  -T j 
and  comprehends  the  question  whether  words  constitute  a  sufficient 
or  reasonable  provocation  in  law.  Of  course,  the  books  abound  in 
utterance  of  the  platitude  that  words,  however  opprobrious,  constitute 
no  provocation  in  law.  Speaking  as  the  organ  of  this  court,  I  have 
often  uttered  this  platitude  myself;  but  the  statement  is  subject  to 
many  qualifications.  The  general  good  sense  of  mankind  has  in  some 
instances  so  far  qualified  the  rigor  of  what  is  termed  the  ancient  rule 
that  a  statute  has  been  passed  in  Texas  which  reduces  a  homicide  to 
manslaughter  where  insulting  words  are  used  to  or  concerning  a  fe- 
male relative.  The  killing  is  reduced  to  manslaughter  where  it  oc- 
curs as  soon  as  the  parties  meet  after  the  knowledge  of  the  insult. 
9  Am.  &  Eng.  Ency.  of  Law,  581. 

In  Alabama  a  statute  provides  that  opprobrious  words  shall  in  some 
circumstances  justify  an  assault  and  battery.  Riddle  v.  State,  49  Ala. 
389.  And  in  that  state,  without  any  statutory  provision  on  the  sub- 
ject, it  has  been  determined  that  "insult  by  mere  words,"  when  the 
defendant  acts  on  them  and  he  has  not  provoked  them,  may  be  weighed 
by  the  jury  with  other  evidence  in  determining  whether  the  killing 
was  murder  in  the  first  or  second  degree.  Watson  v.  State,  82  Ala. 
10,  2  South.  455. 

After  speaking  of  Morley's  Case,  Hale  says:  "Many  who  were  of 
opinion  that  bare  words  of  slighting,  disdain  or  contumely  would  not 
of  themselves  make  such  a  provocation  as  to  lessen  the  crime  into 
manslaughter,  yet  were  of  this  opinion:  That  if  A.  gives  indecent 
language  to  B.,  and  B.  thereupon  strikes  A.,  but  not  mortally,  and 
then  A.  strikes  B.  again,  and  then  B.  kills  A.,  that  this  is  but  man- 
slaughter, for  the  second  stroke  made  a  new  provocation,  and  so  it 
was  but  a  sudden  falling  out,  and,  though  B.  gave  the  first  stroke,  and, 
after  a  blow  received  from  A.,  B.  gives  him  a  mortal  stroke,  this 
is  but  manslaughter.     According   to  the   proverb,   the   second  blow 


1SZ* 


3S0  HOMICIDE.  (Cll.   12 

makes  the  affray.  And  this  was  the  opinion  of  myself  and  some  oth- 
ers."    1  Hale,  P.  C.  456. 

Now  in  the  case  Hale  supposes  it  is,  as  he  says,  the  second  stroke 
that  made  a  "new  provocation" ;  but  the  second  stroke  was  given 
by  A.  Then  what  made  the  old  provocation?  Evidently  the  "in- 
decent words"  of  A.,  which,  given  by  A.  to  B.,  prompted  the  latter 
to  give  the  first  stroke.  So,  in  Morley's  Case  it  was  agreed  that  "if 
upon  ill  words  both  of  the  parties  suddenly  fight,  and  one  kill  the  other,. 
this  is  but  manslaughter;  for  it  is  a  combat  betwixt  two  upon  a  sud- 
den heat,  which  is  the  legal  description  of  manslaughter."  6  How. 
St.  Tr.  771.  In  that  instance,  also,  it  must  be  noted  that  "ill  words" 
were  the  provocation  that  made  the  hot  blood  which  resulted  only 
in  manslaughter.  To  test  this  matter  further,  suppose  no  "ill  words" 
used,  what  then  the  crime?    Evidently  murder. 

It  is  said  in  the  books  that,  though  an  insufficient  assault  or  demon- 
stration do  not  import  coming  violence,  still  it  and  insulting  words 
combined  may  so  excite  the  passions  as  to  reduce  the  killing  to  man- 
slaughter.    2  Bishop's  New  Cr.  Law,  §  704. 

If  the  inchoate  assault  be  naught  as  provocation,  and  the  oppro- 
brious words  be  naught  as  provocation,  I  am  unable  to  see  how  the 
addition  of  these  two  ciphers  can  make  a  unit.  "The  moment,  how- 
ever, the  person  is  touched  with  apparent  insolence,  then  the  provoca- 
tion is  one  which,  ordinarily  speaking,  reduces  the  offense  to  man- 
slaughter." 1  Whart.  Cr.  Law  (10th  Ed.)  §  456.  And  it  is  held  that 
such  "apparent  insolence"  may  be  manifested  in  a  variety  of  ways, 
as,  for  instance,  by  a  contemptuous  jostling  on  the  street,  by  tweak- 
ing the  nose,  by  filliping  on  the  forehead,  or  by  spitting  in  the  face. 
In  most  of  these  instances  and  illustrations  there  is  no  physical  pain 
or  injury  inflicted.  The  "sudden  heat"  springs  from  the  indignity 
the  insult  offered,  and  from  nothing  else.  Kelly,  Cr.  Law,  §  518. 
This  being  true,  the  law  should  not  be  so  unreasonable  as  to  deny  to 
an"Tnsnlt  offered  in  words  the  same  force  and  effect  which  all  men  rec- 
i;ze  that  it  has  as  a  matter  of  fact.  If  it  "so  excite  the  passions 
of  the  mass  of  men  as  to  enthrall  their  reason,  the  law  should  hold 
it  adequate  cause"  for  the  reduction  of  the  grade  of  the  offense  re- 
sulting from  the  use  of  the  insulting  words.  No  sound  distinction 
can,  it  seems,  be  taken  in  principle  between  insult  offered  by  acts  and 
that  offered  by  foul  and  opprobrious  words. 

I  will  now  refer  to  some  adjudications  where  insulting  words  have 
been  held  a  sufficient  basis  for  a  charge  or  an  instruction  on  the  of- 
fense of  manslaughter.  Where  the  prisoner  was  indicted  for  the  will- 
ful murder  of  his  wife,  Blackburn,  J.,  in  summing  up,  said:  "As  a 
general  rule  of  law,  no  provocation  of  words  will  reduce  the  crime  of 
murder  to  that  of  manslaughter,  but  under  special  circumstances  there 
.nay  be  such  a  provocation  of  words  as  will  have  that  effect;  for  in- 
stance, if  a  husband  suddenly  hear  from  his  wife  that  she  had  com- 
mitted adultery,  and  he,  having  no  idea  of  such  a  thing  before,  were 


Sec.  4)  VOLUNTARY    MANSLAUGHTER.  Mv1 

thereupon  to  kill  his  wife,  it  might  be  manslaughter.  Now,  in  this 
case,  words  spoken  by  the  deceased  just  previous  to  the  blows  inflicted 
by  the  prisoner  were  these :  'Aye ;  but  I'll  take  no  more  for  thee,  for 
I  will  have  no  more  children  of  thee.  I  have  done  it  once,  and  I'll 
do  it  again.'  Now,  what  you  will  have  to  consider  is,  would  these 
words,  which  were  spoken  just  previous  to  the  blows,  amount  to  such 
a  provocation  as  would  in  an  ordinary  man,  not  in  a  man  of  violent 
or  passionate  disposition,  provoke  him  in  such  a  way  as  to  justify 
him  in  striking  her  as  the  prisoner  did?"  Reg.  v.  Rothwell,  12  Cox, 
C.  C.  145.  In  that  case  (tried  in  1871)  the  husband  seized  a  pair  of 
tongs,  close  at  hand,  and  struck  his  -wife  three  violent  blows  on  the 
head,  from  which  she  died  within  a  week,  and  the  verdict  was  for 
manslaughter. 

[The  Court  here  reviewed  Reg.  v.  Smith,  4  Fost.  &  F.  1066 ;  Seals 
v.  State,  3  Baxt.  (Tenn.)  466,  and  Wilson  v.  People,  4  Parker,  Cr. 
R.  (N.  Y.)  619,  and  continued:] 

So  it  will  be  seen  that  there  are  circumstances  where  words  do 
amount  to  a  provocation  in  law ;  i.  e.,  a  reasonable  provocation  to  be 
submitted  to  the  determination  of  the  jury,  and,  if  found  by  them  to 
exist,  then  the  crime  is  lowered  to  the  grade  of  manslaughter.  If 
there  ever  was  a  case  to  which  this  principle  should  be  applied,  it 
would  seem  it  should  be  applied  to  the  case  at  bar.  A  father  is  in- 
formed that  his  young  daughter,  just  budding  into  womanhood,  has 
been  ravished  by  his  son-in-law,  while  under  the  supposed  protection 
of  his  roof.  Arriving  where  the  son-in-law  is,  and  making  inquiry 
of  him  why  he  had  done  the  foul  deed,  that  father  receives  the  an- 
swer, "I'll  do  as  I  damn  please  about  it."  This  insolent  and  defiant 
reply  amounted  to  an  affirmation  of  Hadley's  guilt !  So  long  as  human 
nature  remains  as  God  made  it,  such  audacious  and  atrocious  avowals 
will  be  met  as  met  by  defendant.  It  should  be  held,  therefore,  that  the 
words  in  question  should  have  been  left  to  the  jury  to  say  whether,  in 
the  circumstance  detailed  in  evidence,  they  constituted  a  reasonable 
provocation,  and,  if  so  found,  that  then  defendant  was  guilty  of  no 
higher  offense  than  manslaughter  in  the  fourth  degree. 

The  judgment  should  be  reversed,  and  the  cause  remanded.  Bur- 
gess, J.,  concurs  in  toto.  Gantt,  P.  J.,  does  not  concur  as  to  that 
portion  of  paragraph  2  in  reference  to  words  being  regarded  as  a 
reasonable  provocation  by  either  court  or  jury.2 

2  Compare  State  v.  Neville,  51  N.  C.  423  (1859) ;  Hardcastle  v.  State,  36  Tex. 
Cr.  R.  555,  38  S.  W.  186  (1896) ;  State  v.  Senegal,  107  La.  452,  31  South.  867 
(1902). 


382  homicide.  (Ch.  12 


STATE  v.  YANZ. 

(Supreme  Court  of  Errors  of  Connecticut,  1901.     74  Conn.  177,  50  Atl.  37,  54 
L.  R.  A.  780,  92  Am.  St.  Rep.  205.) 

Baldwin,  J.  The  trial  court,  in  its  charge  to  the  jury,  used  this 
language:  "If  in  fact  no  adultery  was  going  on,  and  the  husband  is 
mistaken  as  to  the  fact,  though  the  circumstances  were  such  as  to 
justify  a  belief  even  of  adultery,  the  offense  would  not  be  reduced  to 
manslaughter.  The  husband  must  judge  at  his  peril  that  the  jury  may 
find  that  he  was  mistaken,  and  so  find  him  guilty  of  murder  instead  of 
manslaughter." 

The  law  justifies  a  jury  in  calling  it  manslaughter  when,  on  finding 
his  wife  in  the  act  of  adultery,  a  man,  in  the  first  transport  of  passion, 
kills  her  paramour.  This  is  because,  from  a  sudden  act  of  this  kind, 
committed  under  the  natural  excitement  of  feeling  induced  by  so  gross 
an  outrage,  malice,  which  is  a  necessary  ingredient  of  the  crime  of 
murder,  cannot  fairly  be  implied.  The  excitement  is  the  effect  of  a 
belief,  from  ocular  evidence,  of  the  actual  commission  of  adultery. 
It  is  the  belief,  so  reasonably  formed,  that  excites  the  uncontrollable 
passion.  Such  a  belief,  though  a  mistaken  one,  is  calculated  to  induce 
the  same  emotions  as  would  be  felt  were  the  wrongful  act  in  fact 
committed. 

The  law  deems  a  husband's  passion,  excited  by  surprising  his  wife  in, 
the  act  of  adultery,  so  far  uncontrollable,  from  the  frailty  of  human 
nature,  that,  if  he  kill  her  paramour  on  the  impulse  of  the  moment, 
and  no  actual  malice  is  disclosed,  none  ought  to  be  implied.  He  is 
not  justified;  but  he  is  not  a  murderer.  The  reason  of  this  rule  of 
law  being  the  existence  of  an  uncontrollable  passion,  naturally  in- 
duced, it  must  logically  follow  that  it  suffices  if  such  a  passion  has 
been  naturally  induced  in  the  mind  of  the  slayer  by  the  sight  of  his 
wife  in  the  embrace  of  the  man  whom  he  killed  and  a  reasonable  be- 
lief of  her  guilt,  formed  under  circumstances  such  as  those  to  which 
the  accused  testified  in  the  present  case.  If  the  jury  believed  this  tes- 
timony, or  so  much  of  it  as  showed  a  state  of  facts  which,  in  their 
opinion,  justified  and  produced  a  reasonable  belief  on  the  part  of  the 
accused  that  adultery  was  being  committed  when  the  shot  was  fired, 
then,  there  having  been  no  proof  of  actual  malice,  although  they  may 
also  have  believed  that  it  was  fired  intentionally,  the  natural  excite- 
ment mi"  passion  and  want  of  premeditation  make  the  offense  man- 
slaughter. Morris  v.  Piatt,  32  Conn.  75,  83.  There  is  error.  The 
judgment  is  set  aside,  and  a  new  trial  is  ordered. 

Torrance  and  Mali.,  JJ.,  concurred.    Andrews,  C.  J.,  dissented. 
Hamersley,  J.  (dissenting).    The  particular  passage  of  the  charge 

claimed  to  he  erroneous  is  this:  "If  in  fact  no  adultery  was  going  on, 
and  the  husband  is  mistaken  as  to  the  fact,  though  the  circumstances 
were  such  as  to  justify  a  belief  even  of  adultery,  the  offense  would 


Sec.  4)  VOLUNTARY    MANSLAUGHTER.  383 

not  be  reduced  to  manslaughter."  The  statement  is  correct.  The  par- 
ticular form  of  manslaughter  the  court  was  called  upon  to  explain  was 
this :  An  intentional  killing  in  a  transport  of  passion  induced  by  an 
immediate  wrong  done  to  the  killer  by  the  person  killed,  which  the 
law  deems  to  be  of  such  nature  that  the  ordinary  man  is  unable,  under 
the  first  sting  of  its  infliction,  to  control  a  natural  impulse  to  punish 
the  offender.  Such  an  injury,  if  unprovoked,  constitutes  a  provoca- 
tion which  may  render  the  immediate  killing  of  the  offender,  in  the 
transport  of  sudden  anger  caused  by  the  injury  received,  manslaugh- 
ter, and  not  murder.  It  is  a  principle  common  to  most  systems  _of 
jurisprudence,  arising  from^essential  conditions  of  life,  that  the  pun- 
ishment for  unjustifiable,  intentional  killing  should  be  less  severe  when 
tKe"  fatal  blow  is  impelled  by  a  transient  rage,  reasonably  induced  by 
and  immediately  following  a  wrongful  act  done  by  the  person  killed 
to^the  slayer.  Such  wrongful  act  constitutes  legal  provocation,  which 
demands  the  milder  punishment;  that  is,  under  our  law  reduces  mur-  y, 
der  to  manslaughter.  It  should,  however,  be  remembered  that  to  call 
for  the  milder  punishment  the  killing  must  be  in  fact  the  result  of  a 
sudden  rage,  difficult  for  the  ordinary  man  to  control,  directly  induced 
by  a  grievous  injury.  If  in  fact  it  is  the  result  of  the  cruel  spirit  of 
revenge  that  must  have  life  for  a  wrong,  it  is  murder,  no  matter  what 
the  provocation  may  be.  In  drawing  the  line  between  the  crimes  of 
murder  and  manslaughter,  the  law  repels  the  notion  that  killing  in 
revenge  can  be  less  than  murder.  The  cases  in  which  particular  facts  I 
have  been  held  to  show  legal  provocation  point  to  a  principle,  commonly 
to  all,  by  which  each  is  determined,  and  suggests  its  foundation,  name-// 
ly,  when  the  mind  of  the  slayer  is  not  possessed  by  that  conscious 
cruelty  indicated  by  voluntary  killing,  but  by  a  sudden  transient  rage, 
being  the  natural  product  of  an  injury  then  done  to  him  by  the  person 
killed,  the  offense  may  be  manslaughter.  Mere  rage  is  insufficient.  /^ 
It  must  arise  directly  from  an  injury  then  received,  which  must  be  as 
real  as  that  caused  by  a  severe  battery.  Mere  insult  is  insufficient  in 
law  to  produce  this  rage,  unless  it  involve  some  grievous  injury;  not 
a  fanciful  one,  such  as  may  result  from  mocking  words  or  gestures, 
but  a  substantial  injury,  such  as  may  be  caused  in  some  conditions  of 
life  by  an  unpunished  personal  affront,  or  such  as  may  be  suffered  by  . 
a  husband  or  father  in  the  degradation  of  his  wife  or  child.  It  is  the 
combination  of  adequate  insult  and  injury  received,  of  sudden  and 
uncontrollable  transient  rage  thereby  naturally  produced,  and  of  un- 
lawful killing  directly  resulting  from  that  rage,  which  marks  such 
killing  as  manslaughter.  The  essence  of  the  common  law,  as  affect- 
ing the  distinction  between  murder  and  manslaughter  (excluding  some 
arbitrary  tests),  is  this:  Murder  implies  the  presence  as  dominating 
a  voluntary  act  causing  death  of  an  inhuman  or  unnaturally  cruel  state 
of  mind;  manslaughter  implies  its  absence.  It  is  thus  stated  by  Lord 
Holt  in  1707 :  "He  that  doth  a  cruel  act  voluntarily,  doth  it  of  malice 
prepensed."    Reg.  v.  Mawgridge,  1  Kel.  119  et  seq.    Sir  J.  F.  Stephen 


3S4  homicide.  (Ch.  12 

characterizes  this  definition  of  malice  aforethought  as  correct  and 
happy,  and,  with  the  insertion  of  the  words  "or  cruelly  reckless"  as 
solving  nearly  all  questions  as  to  the  distinction  between  murder  and 
manslaughter.  1  Steph.  Hist.  Cr.  Law  Eng.  pp.  70,  73.  Russell  thus 
explains  what  may  be  involved  in  a  cruel  act :  "Violent  acts  of  re- 
sentment, bearing  no  proportion  to  provocation  or  insult,  are  bar- 
barous, proceeding  rather  from  brutal  malignity  than  human  frailty; 
and  barbarity  will  often  make  malice."  1  Russ.  Cr.  (9th  Am.  Ed.) 
713.  Intentional  unlawful  killing  is  necessarily  a  cruel  act,  which 
implies  murder;  but  when  the  person  killed  is  himself  the  aggressor, 
through  giving  a  provocation  adequate  to  produce  a  sudden  anger 
and  impulse  to  punish  the  wrong,  sufficient  to  dominate  the  will  of 
the  killer,  the  inherent  cruelty  of  the  act  is  so  far  modified  as  to  make 
the  offense  manslaughter.  Provocation,  therefore,  is  legally  effective, 
because  for  the  moment  it  prevents,  subdues,  or  excludes  from  the 
mind  of  the  criminal  actor  that  unnatural  cruelty  which  is  the  ear- 
mark of  murder  through  the  controlling  presence  of  natural  rage  im- 
mediately induced  by  an  adequate  injury.  The  essential  test  of  an 
adequate  injury  is  its  inherent  and  judicially  known  capacity,  under 
existing  social  conditions,  to  cause  such  rage,  as  a  rule,  when  inflicted 
on  the  ordinary  man.  The  conditions  to  which  this  part  of  the  charge 
applied  were  these:  (1)  An  admittedly  intentional  unlawful  killing; 
(2)  in  a  transport  of  rage;  (3)  induced  by  an  injury  and  insult  done 
to  the  defendant  by  adultery  committed  with  his  wife  in  his  presence. 
To  make  the  offense  manslaughter,  the  injury  must  have  been  done. 
Intentional  unlawful  killing  in  a  rage  is  murder,  and  not  manslaugh- 
ter. Anger,  thirsting  for  the  blood  of  an  enemy,  is  in  itself  an  ear- 
mark of  murder,  no  less  than  revenge  or  brutal  ferocity ;  but  when 
it  is  provoked  by  the  wrongful  act  of  the  person  slain,  who  thus 
brings  upon  himself  the  fatal  blow,  given  in  the  first  outbreak  of  rage, 
caused  by  himself,  the  offense  is  manslaughter,  not  only  because  the 
voluntary  act  is,  in  a  way,  compelled  by  an  ungovernable  rage,  but 
also  because  the  victim  is  the  aggressor,  and  his  wrong,  although  it 
cannot  justify,  may  modify,  the  nature  of  the  homicide  thus  induced. 
The  court  therefore  correctly  told  the  jury  that,  to  make  the  offense 
manslaughter,  the  injury  claimed  as  a  provocation  must  have  in  fact 
been  done.  Our  law  of  homicide  recognizes  no  provocation  as  legally 
competent  to  so  modify  the  cruelty  of  intentional,  unlawful  killing  as 
to  reduce  the  offense  to  manslaughter,  except  the  provocation  involved 
in  an  actual  and  adequate  injury  and  insult.  A  different  rule  of  provo- 
cation applies  when  the  killing  is  not  intentional,  as  where  it  results 
from  the  use  of  force,  no1  intended,  and  not  naturally  adapted,  to 
cause  death.  But,  where  the  killing  is  both  intentional  and  unlawful, 
the  only  legal  provocation  is  that  given  by  an  actual  injury  and  insult. 
The  decision  of  the  majority  of  the  court  is  based  on  the  assertion 
that  the  intentional  unlawful  killing  of  an  innocent  person  who  has 
done  the  slayer  no  wrong  may  he  manslaughter,  or,  in  other  words, 


Sec.  4)  VOLUNTARY   MANSLAUGHTER.  385 

an  actual  injury  clone  to  the  slayer  is  not  essential  in  order  to  reduce 
such  killing  from  murder  to  manslaughter.  I  find  no  authority  in  our 
law  for  this  assertion.  During  the  three  centuries  in  which  the  dis- 
tinction between  the  crime  of  murder  and  that  of  manslaughter  has 
been  developed  and  established,  there  is,  so  far  as  I  have  been  able 
to  discover,  no  dictum  of  jurist  or  decision  of  court  which  has  failed 
to  recognize  the  necessity  of  an  actual  injury  and  insult  given  by  the 
killed  and  suffered  by  the  killer  as  necessary  to  the  reduction  of  in- 
tentional, unlawful  killing  from  murder  to  manslaughter.  It  seems 
to  me  unquestionable  that  the  decision  involves  a  clean-cut  and  radical 
change  of  existing  law.  I  think  such  a  change  would  be  unwise,  and 
inconsistent  with  the  considerations  of  public  policy  that  underlie  our 
law  of  homicide.  It  is,  however,  unnecessary  to  discuss  the  wisdom 
of  the  change,  for  it  is  one  within  the  province  of  the  Legislature,  and 
not  of  the  court,  to  make. 

I  think  there  is  no  error,  and  that  a  new  trial  should  be  denied.1 

For  involuntary  manslaughter,  see  chapter  IV. 

i  Parts  of  the  opinion  of  Baldwin,  J.,  and  Hamersley,  J.,  are  omitted. 

"The  seventh  request  was:  'If  the  jury  believed  that  the  defendant  as- 
sisted in  killing  Ouloosian,  but  under  threats  against  the  defendant  by 
Kasper,  as  shown  by  the  evidence,  then  they  are  to  find  the  defendant  guilty 
of  manslaughter.'  This  request  was  refused.  We  have  already  seen  that  the 
Intentional  killing  of  another  under  threats  is  held  to  be  murder.  The  only 
ground  upon  which  the  request  is  urged — indeed,  the  only  one  upon  which  it 
can  be  urged— is  that  fear,  like  passion,  may  so  cloud  the  mind  as  to  eliminate 
malice.  The  comparison  of  the  two  elements  of  action  is  not  apt.  One's 
own^passion  is  not  a  defense  to  reduce  a  crime,  unless  it  is  caused  by  provbca- 
tipnTTtke-a-fight-or-a- gross  indignity,  between  the  victim  and  the' assailant 
Passion  induced  by  a  third  person  would  be  no  defense  to  a  homicide.  So  fear 
induced  by  one  person  is  no  defense  to  a  defendant  who  kills  another  under 
its  influence.  This,  of  course,  is  a  general  rule;  but  it  applies  to  this  case. 
There  might  be  cases,  like  a  panic,  where  a  general  fear  might  not  only 
reduce,  but  even  excuse,  an  unlawful  act:  but  such  is  not  this  case.  If  one 
has  sufficient  power  of  mental  action  to  put  his  own  chances  of  safety 
against  the  life  of  an  innocent  third  person,  his  act  can  neither  be  entitled 
to  exease  nor  reduction  on  the  ground  of  fear.  Something  more,  at  least. 
must  appear  than  is  shown  in  this  request  or  in  this  case."  Stiness,  C  J  in 
State  v.  Nargashian,  26  R.  I.  299,  58  Atl.  953,  106  Am.  St.  Rep.  715  (1904). 
Mik.Cb.L— 25 


V 


386 


LARCENY. 


(Ch.  13 


CHAPTER  XIII. 
LARCENY. 


SECTION    1.— PROPERTY   THE    SUBJECT    OF   LARCENY. 


It  is  to  be  known  that  theft  is,  according  to  the  laws,  the  fraudu- 
lent handling  of  another  person's  property  with  the  intention  of  steal- 
ing, against  the  will  of  the  lord  whose  property  it  is.  I  say  with  the 
intention,  for  without  the  intention  of  stealing  it  is  not  committed. 

Bracton,  f.  134b. 

The  definitions  of  larceny  are  none  of  them  complete.  Mr.  East's  is 
the  most  so;  but  that  wants  some  little  explanation.  His  definition 
is  "the  wrongful  or  fraudulent  taking  and  carrying  away  by  any  per- 
son of  the  mere  personal  goods  of  another,  from  any  place,  with  a 
felonious  intent  to  convert  them  to  his  (the  taker's)  own  use,  and  make 
them  his  own  property,  without  the  consent  of  the  owner."  This  is 
defective  in  not  stating  what  the  definition  of  "felonious"  in  this  defini- 
tion is.  It  may  be  explained  to  mean  that  there  is  no  color  of  right 
or  excuse  for  the  act,  and  the  intent  must  be  to  deprive  the  owner,  not 
temporarily,  but  permanently,  of  his  property. 

Parke,  B.,  in  Reg.  v.  Holloway,  2  Car.  &  K.  946  (1849). 


ANONYMOUS. 


(King's  Bench,   1478.     Y.  B.  18  Edw.  IV,  8,  pi.  7.) 

A  man  was  indicted  in  the  King's  Bench  for  having,  on  Monday 
next  before  the  Feast  of  the  Purification  of  the  Blessed  Virgin  Mary, 
10  Edw.  IV,  at  C,  in  the  county  of  M.,  with  force  and  arms  broken 
into  a  dove  cote  and  feloniously  taken  twenty  young  pigeons.  And 
this  was  adjudged  a  good  indictment,  notwithstanding  the  exception 
use  ih'-  property  in  the  said  pigeons  would  be  at  all  times 
in  him  to  whom  the  dove  cote  belonged,  inasmuch  as  they  could  not 
go  out,  but  he  could  take  them  at  any  time  at  his  pleasure;  but  it  is 
otherwise  if  he  were  indicted  for  the  taking  of  old  pigeons,  because 
the  law  docs  not  adjudge  the  propert)  in  them  in  any  one,  for  they 
'  go  about  the  country  and  In-  cannot  take  them  al  pleasure;  and,  there- 
fore, if  he  were  indicted  for  this  tin'  indictment  is  void.  Also,  if  he 
be  indicted  for  taking  pike  or  tenches  out  of  a  pond  or  trunk  feloni- 
ously the  indictment  is  good  causa  qua  supra,  otherwise  is  it  if  they 


>3J7< 

3f3> 

■ 

*•  3  *  ?•  r<*4^ 


a 


' 


-A^yv/\^  ■ 


-jU"1 


; 


u^^\ 


Sec.  1)  PROPERTY   THE   SUBJECT   OF    LARCENY.  387 

be  taken  in  the  river;1  the  law  is  the  same  as  to  young  goshawks 
which  cannot  go  or  fly,  hatched  in  my  own  park,  it  is  felony,  but  it 
is  otherwise  as  to  other  goshawks;  and  so  note  the  difference  when 
the  property  is  mine  at  my  pleasure  and  when  it  is  not.2 


REX  v.  SEARING. 
(Court  for  Crown  Cases  Reserved,  1818.    Russ.  &  R.  350.) 

The  prisoner  was  tried  before  Mr.  Baron  Wood,  at  the  Lent  Assizes 
for  Hertfordshire,  in  the  year  1818,  for  larceny,  in  stealing  "five 
live  tame  ferrets  confined  in  a  certain  hutch,"  of  the  price  of  15  shil- 
lings, the  property  of  Daniel  Flower. 

The  jury  found  the  prisoner  guilty;  but  on  the  authority  of  2  East, 
P.  C.  614,  where  it  is  "said  that  ferrets  (among  other  things)  are  con- 
sidered of  so  base  a  nature  that  no  larceny  can  be  committed  of  them, 
the  learned  Jtrdge  respited  the  judgment  until  the  opinion  of  the 
judges  could  be  taken  thereon. 

It  appeared  in  evidence  that  ferrets  are  valuable  animals,  and  those 
in  question  were  sold  by  the  prisoners  for  9  shillings. 

In  Easter  Term,  1818,  the  judges  met  and  considered  this  case. 
They  were  of  opinion  that  ferrets  (though  tame  and  salable)  could 
not  be  the  subject  of  larceny,  and  that  the  judgment  ought  to  be  ar- 
rested.8 

i  Accord:  Rex  v.  Hudson,  2  East,  P.  C.  Gil  (1781) ;  State  v.  Krider,  78  N.  C. 
481  (1S78). 

2  "These  pheasants,  having  been  hatched  by  hens,  and  reared  in  a  coop, 
were  tame  pheasants  at  the  time  they  were  taken,  whatever  might  have  been  . 
their  destiny  afterwards.  Being  thus,  the  prosecutor  had  such  a  property  in 
them  that  they  would  become  the  subject  of  larceny."  Channell,  B.,  in  Reg. 
v.  Cory,  10  Cox,  C.  C.  23  (1S64).  Accord:  Reg.  v.  Shickle,  11  Cox,  C.  C.  180 
(1868). 

s  "Under  decisions  of  English  and  American  courts,  made  upon  the  common- 
law  definition  of  larceny,  Mr.  Bishop  classes  the  following  animals,  when  re- 
claimed, as  the  subjects  of  the  offense:  Pigeons,  doves,  hares,  conies,  deer. 
swans,  wild  boars,  cranes,  pheasants,  partridges  and  fish  suitable  for  food, 
including  oysters.  To  which  might  be  safely  added  wild  turkeys,  geese, 
ducks,  etc.,  when  reclaimed./'pOf  those  animals  of  which  there  can  be  no  lar- 
ceny, though  reclaimed,  he  puts  down  the  following:  Dogs,  cats,  bears,  foxt is, 
apes,  monkeys,  polecats,  ferrets,  squirrels,  parrots,  singing  birds,  martins,  and 
coons.  In  the  South,  squirrels  are  in  common  use  as  food  animals,  and  the 
hunters  of  all  climates  regard  bears  as  good  food.  Iowa  is  credited  with 
the  decision  (Warren  v.  State,  1  G.  Greene,  10G)  that  coons  are  unfit  for  food, 
and  therefore,  by  the  common  law,  not  the  subject  of  larceny,  when  reclaimed. 
Among  the  colored  people  of  the  South  the  coon,  when  fat  in  the  fall  and 
winter,  is  regarded  as  a  luxury,  and  the  Iowa  decision  would  not  be  regarded 
by  them  as  sound  law  or  good  taste.  On  the  whole  subject,  see  2  Bishop  on 
Criminal  Law  (Gth  Ed.)  §§  757,  7S1,  and  notes."  English,  C.  J.,  in  Haywood  v. 
State,  41  Ark.  470  (1SS3). 

"Hales,  J.,  *  *  *  is  said  (Stanford,  p.  275)  to  have  'thought  it  no  felony 
to  take  a  diamond,  rubie,  or  other  such  stone  (not  set  in  gold  or  otherwise) 
because  they  be  not  of  price  with  all  men,  howsoever  some  do  hold  them 
both  dear  and  precious.' "    3  Steph.  Hist.  Cr.  L.  143. 


388  LARCENY.  (Ch.   13 

CARVER  v.  PIERCE. 

(King's  Bench,  1648.     Style,  66.) 

Carver  brings  an  action  upon _thej case  against  Pierce  for  speaking 
these  words  of  him,  Thou  art  a  thief,  for  thou  hast  stolen  my  dung; 
and  hath  a  verdict.  The  defendant  moved  in  arrest  of  judgment,  that 
the  words  were  not  actionable:  for  it  is  not  certain  whether  the  dung 
be  a  chattel,  or  part  of  the  freehold,  and  if  so,  it  cannot  be  theft  to 
take  it,  but  a  trespass,  and  then  the  action  will  not  lie. 

Bacon,  Justice.    Dung  is  a  chattel  and  may  be  stolen. 

But  Roll,  Justice,  answered:  Dung  may  be  a  chattel,  and  it  may 
not  be  a  chattel ;  for  a  heap  of  dung  is  a  chattel,  but  if  it  be  spread 
upon  the  land  it  is  not,  and  said,  the  word  thief  here  is  actionable 
alone,  and  there  are  no  subsequent  words  to  mitigate  the  former  words, 
for  the  stealing  of  dung  is  felony  if  it  be  a  chattel. 

Bacon,  Justice,  said :  It  doth  not  appear  in  this  case  of  what  value 
the  dung  was,  and  how  shall  it  be  known  whether  it  be  felony  or  petty 
larceny. 

To  this  Roll  answered :  The  words  are  scandalous  notwithstand- 
ing, and  actionable,  though  the  stealing  of  the  dung  be  not  felony. 

The  rule  was  to  move  it  again  Tuesday  next. 


REX  v.  WESTBEER. 
(King's  Bench,  1740.     1  Leach  [4th   Ed]  12.) 

At  the  Old  Bailey  January  Session,  1739,  Thomas  Westbeer  was 
indicted  before  Lord  Chief  Baron  Comyns,  and  Mr.  Justice  Chapple, 
for  stealing  a  parchment  writing,  purporting  to  be  a  commission,  dated 
in  the  reign  of  Queen  Anne,  impowering  the  commissioners  therein 
named  (pursuant  to  an  order  which  had  been  previously  rhacte  in 
chancery,  in  a  cause  between  Lord  Chesterfield  and  John  Cantrell  and 
others)  to  enter  and  ascertain  the  boundaries  of  the  manors  of  Brad- 
bury and  Ilartshcrnc,  and  to  certify  how  high  the  water  of  Furnace 
Pool  ought  to  be  kept,  etc.  And  also  one  other  parchment  writing, 
purporting  to  be  a  return  made  to  the  said  commission.  The  prop- 
erty was  laid  to  be  the  goods  of  our  sovereign  lord  the  king,  and  of 
the  value  of  four  shillings.1 

'I'm.  COURT  gave  no  opinion,  whether  these  were  properly  laid  to  be 
the  goods  of  the  king,  nor  whether  the  law  as  to  this  case  was  altered 
by  8  I  fen.  VI,  c.  1'.' ;  but  they  were  unanimously  of  opinion  that  these 
parchment  writings  concerned  the  realty,  and  that  therefore  the  pris- 
oner was  not  guilty  of  the   felony  charged  in  the  indictment.2 

>  Part  <>f  tills  case  is  omitted. 

2  in  s-'iM't  Plea*  of  th.'  Crown  (Sel.  Soc.)  pi.  82,  is  reported  for  the  year 
I'y*)  ;in  appeal  for  robber;  of  the  title  deeds  to  land 


Sec.  1)         PROPERTY  THE  SUBJECT  OF  LARCENY.  389 

HOSKINS  v.  TARRENCE. 


(Supreme  Court  of  Indiana,  1840.     5  Blackf.  417.  35  Am.  Dec.  129.) 

Dewey,  J.  This  was  an  action  of  slander.  The  words  laid  in  the 
declaration  to  have  been  spoken  by  the  defendant  of  the  plaintiff, 
among  others,  are:  "He  broke  into  my  room  and  stole  the  key." 
Plea,  not  guilty.  Verdict  and  judgment  for  plaintiff.  There  was  evi- 
dence that  the  defendant  said  of  the  plaintiff:  "He  broke  into  a  room 
of  my  house,  and  stole  the  key  out  of  the  door."  The  defendant 
moved  the  court  to  instruct;. the  jury  "that  the  key  in  the  lock"  of  the 
door  of  a  house,  and  belonging  thereto,  is  part  of  the  realty,  and  not 
the  subject  of  larceny,  unless  the  same  is  first  severed  from  the  realty 
by  one  act,  and  then  stolen  by  another  and  distinct  act."  The  court 
refused  the  charge.1 

It  is  true  that  the  keys  of  a  house  follow  the  inheritance;  and  the 
writers  who  lay  down  this  doctrine  make  no  distinction  between  keys 
in  the  lock  and  those  in  the  pockets  of  their  owners.  They  are,  never- 
theless, not  fixtures,  but  personal  property,  which,  from  a  rule  of  law 
founded  on  public  convenience,  like  title  papers,  go  with  the  land.  And 
as  no  decision,  so  far  as  we  know,  has  as  yet  ranked  them  among  the 
articles  upon  which  larceny  cannot  be  committed,  and  as  we  see  no 
good  reason  for  carrying  the  doctrine  of  exemption  farther  than  it 
has  already  gone,  we  feel  at  liberty,  upon  the  authority  of  Rex  v. 
Hedges,  supra,  as  well  as  on  principle,  to  decide  that  as  "personal 
goods"  they  are  within  the  purview  of  our  statute  relative  to  crime 
and  punishment,  and  are  the  subjects  of  theft.    Rev.  St.  1838,  p.  207. 

The  circuit  court  committed  no  error  in  refusing  the  instruction  to 
the  jury  which  was  asked  for  by  the  defendant. 

Per  Curiam.  The  judgment  is  affirmed,  with  1  per  cent,  damages 
and  costs. 


REGINA  v.  WATTS. 

(Court  of  Criminal  Appeal,  1854.    6  Cox,  C.  C.  304.) 

The  prisoner,  William  Mote  Watts,  was  indicted  at  the  Quarter 
Sessions  for  the  North  Riding  of  Yorkshire,  on  the  2d  of  June,  1853, 
for  stealing  on  the  3d  day  of  May,  1853,  a  piece  of  paper,  the  property 
of  the  prosecutor,  Francis  Patteson,  and  was  convicted.  The  piece 
of  paper  found  to  have  been  stolen  had  written  upon  it,  when  taken 
by  the  prisoner,  as  alleged  in  the  indictment,  an  agreement  between 
the  prosecutor  and  the  prisoner,  signed  by  each  of  them.  The  agree- 
ment could  not  lie  produced,  but  secondary  evidence  of  it  was  re- 
ceived, from  which  it  appeared  that  the  prisoner  contracted  thereby 
to  build  two  cottages  for  the  prosecutor,  for  a  sum  specified,  accord- 

i  Part  of  this  case  is  omitted. 


— 


390  LARCENY.  (Ch.   13 

ing  to  certain  plans  and  specifications,  and  the  latter  agreed  to  pay 
two  installments,  being  part  of  the  price  agreed  on,  at  certain  stages 
of  the  work,  and  the  remainder  on  completion ;  and  it  was  stipulated 
that  any  alterations  that  might  take  place  during  the  progress  of  the 
building  should  not  affect  the  contract,  but  should  be  decided  upon 
by  the  employer  and  employed,  previous  to  such  alterations  taking 
place.  Under  this  instrument  the  work  was  commenced  and  con- 
tinued. At  the  time  when  it  was  stolen  by  the  prisoner,  as  alleged, 
the  work  was  going  on  under  it.  Nevertheless  it  was  proved  at  the 
trial  that  when  the  agreement  was  stolen  the  prisoner  had  been  paid 
all  the  money  which  he  was  entitled  to  under  it,  although  there  was 
money  owing  to  him  for  extras  and  alterations.  The  agreement  was 
unstamped.  The  counsel  for  the  prisoner  objected,  at  the  close  of 
the  case  for  the  prosecution,  that  from  the  evidence  it  was  clear  that, 
at  the  time  the  piece  of  paper  referred  to  in  the  indictment  was  taken 
by  the  prisoner,  it  was,  in  reality,  a  subsisting  and  valid  agreement, 
and  therefore  not  the  subject  of  larceny  (as  a  piece  of  paper  only) 
at  common  law.  The  question  for  the  opinion  of  the  court  is  whether, 
under  the  circumstances  above  stated,  the  prisoner  could  be  lawfully 
convicted  of  feloniously  stealing  a  piece  of  paper,  as  charged  in  the 
indictment.  No  judgment  was  passed  on  the  prisoner,  and  he  was 
discharged  on  recognizance  of  bail  to  appear  and  receive  judgment 
when  required. 

This  case  was  before  the  court  on  the  12th  November,  1853,  and 
was  sent  back  to  be  restated,  and  an  alteration  was  made  in  it  to  the 
effect  that  the  agreement  was  one  which  required  a  stamp.1 

Price,  for  the  prosecution.  First,  this  was  not  a  chose  in  action 
at  all,  because  whatever  was  due  under  the  agreement  had  been  paid. 
2  Bl.  397. 

Crompton,  J.     But  the  work  was  still  going  on. 
Martin,  B.     And  an  action  might  be  maintained  upon  it  for  not 
building  according  to  the  specification. 

Price.  Then  the  want  of  stamp  prevents  it  from  being  a  chose  in 
action. 

MaulE,  J.  Strictly  speaking,  a  chose  in  action  is  an  incorporeal 
right,  and,  of  course,  therefore,  cannot  be  the  subject  of  larceny; 
but  the  rule  means  that  those  instruments  which  are  the  evidence  of 
a  chose  in  action  arc  not  the  subject  of  larceny. 

Price.  When  flic  objection  is  taken  at  nisi  prius,  it  is  enough  to 
say  that  the  pr<  pi  r  evidence  of  the  contract  is  not  produced,  Jardine 
v.  Payne,  1  I'..  X-  \d.  670.  It  is  unnecessary  to  say  that  the  unstamped 
paper  is  not  a  chose  in  action;  but  in  truth  it  is  not,  because  tli<-  stamp 
laws  prevent  any  court  from  regarding  it  as  an  available  security.     If 

i  The  argument  <>r  Bliss  for  the  prisoner  and  the  concurring  opinions  of 
Alderson,  B.,  and  Crdmpton,  Coleridge,  Maule,  and  Piatt,  .t.f..  and  the  dts- 
aentlng  opinion!  "f  Parke,  B.,  are  omitted.  Wightman,  rrossweil,  and  Wil- 
iiiinis,  JJ.,  and  Martin,  B.,  concurred  with  1 1 1  *  -  Ohief  Justice, 


Sec.  1)  PROPERTY    THE    SUBJECT   OF    LARCENY.  391 

the  prisoner  had  been  indicted  for  stealing  a  valuable  security,  this 
unstamped  agreement  would  not  have  proved  it.  In  R.  v.  Hart,  6 
Car.  &  P.  106,  the  prisoner  was  indicted  for  stealing  blank  acceptances 
on  unstamped  paper;  but  it  was  held  they  were  not  within  the  stat- 
ute, either  as  bills  or  orders  for  payment  of  money  or  securities  for 
money,  and  the  charge  of  stealing  the  stamps  and  paper  was  disposed 
of  on  the  ground  that  there  was  no  sufficient  taking.  Other  cases  of 
imperfect  securities  were:  R.  v.  Perry,  1  Car.  &  K.  725,  1  Cox,  C. 
C.  222,  and  R.  v.  Vyse,  1  Moo.  C.  C.  218.  In  Perry's  Case,  the  pris- 
oner was  charged  with  stealing  a  check,  described  in  another  count 
as  a  piece  of  paper,  and  he  was  convicted  on  the  latter  count. 

Alderson,  B.  Because  the  check  was  absolutely  void,  having  been 
issued  unstamped  beyond  the  limited  distance.  It  never  could  be  made 
a  good  check. 

Price.  The  judges  do  not  appear  to  have  decided  that  the  check 
was  void,  but  to  have  thought  that,  whether  it  was  so  or  not,  the 
prisoner  might  be  convicted  of  stealing  the  paper.  Vyse's  Case  is 
also  like  this,  because  there  the  things  stolen  were  bank  notes,  which 
had  been  paid  in  London,  and  which  one  of  the  partners  of  the  bank- 
ing firm  was  carrying  back  into  the  country  to  be  reissued,  and  it  was 
held  that  they  were  properly  described  as  unstamped  pieces  of  paper 
for  the  purposes  of  the  indictment,  although  some  of  the  judges 
doubted  whether  they  were  or  were  not  valuable  securities.  R.  v. 
Clark,  R.  &  Ry.  181,  is  to  the  same  effect. 

MaulE,  J.  The  notes  were  nothing  but  paper  until  reissued,  be- 
cause they  derived  their  whole  operation  from  being  delivered  to 
some  one. 

Price.  In  a  court  of  justice  the  writing  upon  the  unstamped  paper 
in  the  present  case  bound  nobody. 

Maule,  J.     It  is  the  signature  of  the  parties  which  binds. 

Price.  Lastly,  even  assuming  this  unstamped  agreement  to  be  a 
chose  in  action,  the  prisoner  is  rightly  convicted.  All  the  writers  on 
Criminal  Law,  in  stating  the  rule  that  a  chose  in  action  is  not  the 
subject  of  larceny,  refer  to  the  Year  Books  (10  Edw.  IV,  14a;  49 
Hen.  VI,  fols.  9,  10),  as  the  authority  upon  which  it  rests.  It  ap- 
pears, however,  by  reference  to  those  books,  that  the  ground  of  the 
rule  was  that  choses  in  action  could  not  be  valued,  and  at  that  time 
there  was  no  felony  unless  the  things  stolen  were  of  the  value  of  12 
pence ;  but,  the  law  as  to  value  being  abolished,  cessante  ratione  cessat 
lex,  there  may  be  a  difference  as  to  title  deeds,  which  savor  of  the 
realty.  R.  v.  Walker,  Ry.  &  M.  155.  At  all  events,  the  thing  stolen 
in  this  case  was  a  piece  of  paper;   and  so  the  indictment  is  proved. 

Bliss,  in  reply.    The  general  rule  cannot  be  disputed. 

Lord  Campbell,  C.  J.  We  are  all  of  the  opinion  that,  except  so 
far  as  the  Legislature  has  interfered  with  it,  the  rule  is  that  docu- 
ments which  are  the  evidence  of  a  chose  in  action  are  not  the  subject 
of  larceny. 


392  LARCENY.  (Ch.   13 

Bliss.  The  cases  cited  are  quite  distinguishable.  R.  v.  Vyse  and 
R.  v.  Clark  were  cases  of  satisfied  notes ;  but  here  there  is  no  ground 
for  saying  that  the  agreement  was  at  an  end. 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  conviction  is 
wrong.  I  think  that  the  prisoner  could,  not,  under  the  circumstances 
stated,  be  indicted  for  stealing  a  piece  of  paper.  If  the  agreement 
had  been  stamped,  it  seems  to  be  allowed,  notwithstanding  the  in- 
genious argument  of  Mr.  Price,  that  an  indictment  for  stealing  a 
piece  of  paper  could  not  be  supported,  because  then  it  would  be  what 
is  commonly  called  a  chose  in  action,  and  by  the  common  law  larceny 
cannot  be  committed  of  a  chose  in  action.  Strictly  speaking,  the  in- 
strument, of  course,  is  not  a  chose  in  action,  but  evidence  of  it,  and 
the  reason  of  the  common-law  rule  seems  to  be  that  stealing  the  evi- 
dence of  the  right  does  not  interfere  with  the  right  itself.  Jus  non 
in  tabulis.  The  evidence  may  be  taken,  but  the  right  still  remains. 
At  all  events,  whatever  be  the  reason  of  the  rule,  the  common  law 
is  clear  that  for  a  chose  in  action  larceny  cannot  be  supported ;  ~and 
the  Legislature  has  repeatedly  recognized  that  rule,  by  making  spe- 
cial provision  with  regard  to  instruments,  which  are  choses  in  action, 
and  of  which,  but  for  those  enactments,  larceny  could  not  be  com- 
Xmitted.  As  to  this  not  being  a  chose  in  action,  because  all  that  was 
due  had  been  paid  upon  it,  it  appears  that  the  agreement  is  still  execu- 
tory, and  might  be  used  by  either  side  to  prove  their  rights.  Then 
comes  the  objection  as  to  its  not  being  stamped;  but,  though  it  is  not 
stamped,  I  am  of  opinion  that  it  is  an  agreement.  There  is  a  very 
clear  distinction  between  instruments  which  without  a  stamp  are 
wholly  void,  and  those  which  may  be  rendered  available  at  any  mo- 
ment, by  having  a  stamp  impressed  upon  them.  There  are  many 
cases  in  which  an  unstamped  agreement  is  considered  evidence  of 
a  right.  When  the  question  arises  at  nisi  prius,  as  soon  as  it  appears 
that  the  agreement  was  reduced  into  writing,  parol  evidence  is  ex- 
cluded, because  the  written  instrument  is  the  proper  and  only  evi- 
dence; and  Bradley  v.  Bardsley,  14  M.  &  W.  8?3,  is  strong  to  show 
that  the  court  considers  an  unstamped  agreement  evidence  of  a  right. 
To  an  action  on  an  agreement  a  plea  that  it  was  not  stamped  is 
clearly  bad,  for  the  agreement  may  be  stamped  even  pending  the 
trial,  and  may  then  be  given  in  evidence,  as  the  stamping  reflects 
back  to  the  period  of  the  making  of  the  instrument.  I  agree  that  we 
must  look  a1   tl  of  the  instrument  at  the  time  of  the  larceny 

committed;  but  it  then  had  a  potentiality  of  being  rendered  available, 
and  it  was  evidence  of  an  agreement.  It  was  therefore  evidence  of 
a  chose  in  action,  and  not  the  subject  of  larceny. 

Conviction  reversed.* 

•  Compare  Reg,  v.  Perry,  1  Car.  &  K.  725  (1845). 

Conviction  of  larceny  baa  been  upheld  for  the  stealing  of  tho  following 
properl  v: 

Illiimlnatlnc  ens,  Beg.  v.  White,  6  COX,  O.  0.  218  (1858);  Commonwealth 
r.  Shaw,  •»  Allen  (Maw.)  808,  M    km.   !>■•-■.  Tor,  (1862);    State  v.  Wellman,  34 


Sec.  1)  PROPERTY   THE    SUBJECT   OF    LARCENY.  393 

REGINA  v.  TOWNLEY. 

(Court  of  Criminal  Appeal,  1S71.    12  Cox,  C.  C.  59.) 

Case  reserved  for  the  opinion  of  this  court  by  Mr.  Justice  Black- 
burn. 

The  prisoner  and  one  George  Dunkley  were  indicted  before  me 
at  the  Northampton  Spring  Assizes  for  stealing  126  dead  rabbits. 

The  evidence  showed  that  Mr.  Hollis'  keepers,  about  8  in  the  morn- 
ing on  the  23d  of  September,  discovered  126  dead  and  newly  killed 
rabbits  and  about  400  yards  of  net  concealed  in  a  ditch,  in  the  forest, 
behind  a  hedge,  close  to  a  road  passing  through  the  forest. 

The  rabbits  were  some  in  bags  and  some  in  bundles,  strapped  to- 
gether by  the  legs,  and  had  evidently  been  placed  there  as  a  place  of 
deposit  by  those  who  had  netted  the  rabbits. 

The  keepers  lay  in  wait,  and  about  a  quarter  to  11  on  the  same 
day  Townley  and  a  man,  who  escaped,  came  in  a  cab  driven  by  Dunk- 
ley  along  the  road.  Townley  and  the  man  who  escaped  left  the  cab 
in  charge  of  Dunkley,  and  came  into  the  forest,  and  went  straight 
to  the  ditch  where  the  rabbits  were  concealed,  and  began  to  remove 
them. 

The  prisoners  were  not  defended  by  counsel. 

It  was  contended  by  the  counsel  for  the  prosecution  that  the  rabbits 
on  being  killed  and  reduced  into  possession  by  a  wrongdoer  became 
the  property  of  the  owner  of  the  soil,  in  this  case  the  queen  (Blades 
v.  Higgs,  7  L.  T.  [N.  S.]  798,  834),  and  that,  even  if  it  was  not  lar- 
ceny to  kill  and  carry  away  the  game  at  once,  it  was  so  here,  because 
the  killing  and  carrying  away  was  not  one  continued  act. 

1  Hale,  P.  C.  510,  and  Lee  v.  Risdon,  7  Taunt.  191,  were  cited. 

The  jury,  in  answer  to  questions  from  me,  found  that  the  rabbits 
had  been  killed  by  poachers  in  Selsey  Forest,  on  land  in  the  same  oc- 
cupation and  ownership  as  the  spot  where  they  were  found  hidden. 

That  Townley  removed  them,  knowing  that  they  had  been  so  killed, 
but  that  it  was  not  proved  that  Dunkley  had  any  such  knowledge. 

I  thereupon  directed  a  verdict  of  not  guilty  to  be  entered  as  re- 
garded Dunkley,  and  a  verdict  of  guilty  as  to  Townley,  subject  to  a 
case  for  the  Court  of  Criminal  Appeal. 

It  is  to  be  taken  as  a  fact  that  the  poachers  had  no  intention  to 
abandon  the  wrongful  possession  of  the  rabbits  which  they  had  ac- 
quired by  taking  them,  but  placed  them  in  the  ditch  as  a  place  of  de- 
posit till  they  could  conveniently  remove  them. 

Minn.  221,  25  N.  W.  395  (1SS5) ;  Woods  v.  People.  222  111.  293,  78  N.  E.  607, 
7  L  R.  A.  (N.  S.)  520,  113  Am.  St.  Rep.  415  (1906) ;  water  supplied  in  pipes 
to  consumers,  Ferens  v.  O'Brien,  15  Cox,  C.  C.  332  (1883) ;  intoxicating  liquor 
kept  for  sale  contrary  to  law,  Commonwealth  v.  Coffee,  9  Gray  (Mass.)  139 
(1857);  State  v.  May,  20  Iowa,  305  (1866);  implements  used  for  gambling, 
Bales  v.  State,  3  W.  Va.  685  (186S).  Contra:  State  v.  Wilmore,  9  Ohio  Dec. 
(Reprint)  61  (1883). 
Electricity  has  been  made  the  subject  of  larceny  by  statute  in  some  states. 


394  LARCENY.  (Cll.    13 

The  question  for  the  court  is  whether  on  these  facts  the  prisoner 
was  properly  convicted  of  larceny. 

The  prisoner  was  admitted  to  bail. 

Colin   Blackburn. 

No  counsel  appeared  to  argue  on  either  side. 

Bovill,  C.  J.  (after  stating  the  facts).  The  first  question  that 
arises  is  as  to  the  nature  of  the  property.  Live  rabbits  are  animals 
ferae  naturae,  and  are  not  the  subject  of  absolute  property,  though 
at  the  same  time  they  are  a  particular  species  of  property  ratione 
soli,  or  rather  the  owner  of  the  soil  has  the  right  of  taking  and  killing 
them,  and  as  soon  as  he  has  exercised  that  right  they  become  the 
absolute  property  of  the  owner  of  the  soil.  That  point  was  decided 
in  Blades  v.  Higgs,  supra,  as  to  rabbits,  and  in  Lonsdale  v.  Rigg,  26 
L.  J.  196,  Ex.,  as  to  grouse.  In  this  case  the  rabbits,  having  been 
killed  on  land  the  property  of  the  crown,  and  left  dead  on  the  same 
ground,  would  therefore,  in  the  ordinary  course  of  things,  have  be- 
come the  property  of  the  crown.  But  before  a  person  can  be  con- 
victed of  larceny  of  a  thing  not  the  subject  of  larceny  in  its  original 
state,  as,  e.  g.,  of  a  thing  attached  to  the  soil,  there  must  not  only 
be  a  severance  of  the  thing  from  the  soil,  but  a  felonious  taking  of 
it  also  after  such  severance.  Such  is  the  doctrine  as  applied  to  steal- 
ing trees  and  fruit  therefrom,  lead  from  buildings,  fixtures,  and  min- 
erals ;  but,  if  the  act  of  taking  is  continuous  with  the  act  of  severance, 
it  is  not  larceny.  The  case  of  larceny  of  animals  ferae  naturae  stands 
on  the  same  principle.  Where  game  is  killed  and  falls  on  another's 
land,  it  becomes  the  property  of  the  owner  of  the  land ;  but  the  mere 
fact  that  it  has  fallen  on  the  land  of  another  does  not  render  a  person 
taking  it  up  guilty  of  larceny,  for  there  must  be  a  severance  between 
the  act  of  killing  and  the  act  of  taking  the  game  away.  In  the  present 
case  we  must  take  it  that  the  prisoner  was  one  of  the  poachers,  or 
connected  with  them.  Under  these  circumstances  we  might  come 
to  the  conclusion  that  it  was  a  continuous  act,  and  that  the  poach- 
ers netted,  killed,  packed  up,  and  attempted  to  carry  away  the  rab- 
bits in  one  continuous  act,  and  therefore  that  the  prisoner  ought 
not  to  have  been  convicted  of  larceny. 

Martin,   B.      I   am   of  the  same   opinion.      It   is   clear  that   if  a 
person  kills  rabbits,  and  at  the  same  time  carries  them  away,  he  is 
not  guilty  of  larceny.     Then,   when  he  kills   rabbits,   and   goes   and 
them,  and  comes  back  to  carry  them  away,  can   it  be  said  that 
i    larceny?    A  passage  from  Hale's  P.  C.  510 — "If  a  man  comes  to 
trees,  or  the  lead  off  a  church  or  house,  and  sever  it,  and  after 
about  an  hour's  time  or  so  come  and  fetch  it  away,  it  is  felony,  be- 
the  act  is  nol   continuated,  but  interpolated,  and  in  that  inter- 
■. al  the  property  lodgeth  in  the  right  owner  as  a  chattel,  and  so  it 
was  argued   by  the  Court  of    Kin-'      Bench   C9   Car.   I),   upon  an   in- 
dictment  for  stealing  the  lead  off  Westminster  Abbey" — was  relied 
on  by  the  prosecution,     There  is  also  a  dictum  of  Gibbs,  C.  J.,  to 
the  same  effect,  in  Lee  v.  Risdon,  7  Taunt.  101.     I  am  not  insensible 


Sec.  1)  PROPERTY    THE    SUBJECT   OF    LARCENY.  395 

to  the  effect  of  those  dicta ;  but  here  we  must  take  it  as  a  fact  that 
the  poachers  had  no  intention  to  abandon  possession  of  the  rabbits, 
but  put  them  in  the  ditch  for  convenience  sake ;  and  I  concur  in 
thinking'  that  the  true  law  is  that,  when  the  poachers  go  back  for  the 
purpose  of  taking  them  away,  in  continuation  of  the  original  inten- 
tion, it  does  not  amount  to  larceny. 

BramwEll,  B.  Our  decision  does  not  appear  to  me  to  be  con- 
trary to  what  Lord  Hale  and  Gibbs,  C.  J.,  have  said  in  the  passages 
referred  to.  If  a  man,  having  killed  rabbits  on  the  land  of  another, 
gets  rid  of  them  because  he  is  interrupted,  and  then  goes  away,  and 
afterwards  comes  back  to  remove  the  rabbits,  that  is  a  larceny,  and 
so  if,  on  being  pursued,  he  throws  them  away;  and  it  is  difficult  to 
perceive  any  distinction  where  the  owner  of  a  chattel  attached  to  the 
freehold  finds  it  on  his  land  severed,  and  the  person  who  severed  it 
having  abandoned  it  afterwards  comes  and  takes  it  away.  It  is 
in  those  cases  so  left  as  to  be  in  the  possession  of  the  true  owner, 
and  the  act  is  not,  as  Lord  Hale  expresses  it,  continuated.  In  this 
case,  however,  the  rabbits  were  left  by  the  poachers  as  trespassers 
in  a  place  of  deposit,  though  it  happened  to  be  on  the  land  of  the 
owner;  and  it  is  just  the  same  as  if  they  had  been  taken  and  left 
at  a  public  house,  or  upon  the  land  of  a  neighbor.  If  they  had  been 
left  on  the  land  of  a  neighbor,  or  at  a  public  house,  could  it  have 
been  said  to  be  larceny?  Clearly  not;  and,  if  not,  why  is  it  larceny 
because  the  poachers  left  them  in  a  place  of  deposit  on  the  owner's 
own  land?  It  seems  to  me  that  the  case  is  not  within  the  dicta  of 
Lord  Hale  and  Gibbs,  C.  J.,  but  that  here  the  act  was  continuous, 
and  that  there  was  an  asportation  by  the  poachers  to  a  place  of  de- 
posit, where  they  remained  not  in  the  owner's  possession. 

Byles,  J.  I  cannot  say  that  I  have  not  entertained  a  doubt 
in  this  case;  but  upon  the  whole  I  think  that  this  was  not  larceny. 
The  wrongful  taking  of  the  rabbits  was  never  abandoned  by  the 
poachers,  for  some  of  the  rabbits  were  in  their  bags.  It  could  hardly 
be  said  that  if  a  poacher  dropped  a  rabbit,  and  afterwards  picked 
it  up,  that  could  be  converted  into  larceny;  yet  that  would  follow 
if  the  conviction  were  upheld. 

Blackburn,  J.  I  am  of  the  same  opinion.  Larceny  has  al- 
ways been  defined  as  the  taking  and  carrying  away  of  the  goods  and 
chattels  of  another  person ;  and  it  was  very  early  settled,  where  the 
thing  taken  was  not  a  chattel,  as  where  a  tree  was  cut  down  and 
carried  away,  that  was  not  larceny,  because  the  tree  was  not  taken 
as  a  chattel  out  of  the  owner's  possession,  and  because  the  severance 
of  the  tree  was  accompanied  by  the  taking  of  it  away.  The  same 
law  applied  to  fruit,  fixtures,  minerals,  and  the  like  things,  and  statutes 
have  been  passed  to  make  stealing  in  such  cases  larceny.  Though  in 
the  House  of  Lords,  in  Blades  v.  Higgs,  it  was  decided  that  rabbits 
killed  upon  land  became  the  property  of  the  owner  of  the  land,  it 
was  expressly  said  that  it  did  not  follow  that  every  poacher  is 
guilty  of  larceny,  because,  as  Lord  Cranworth  said:    "Wild  animals, 


396  LARCENY.  (Ch.   13 

whilst  living,  though  they  are,  according  to  Lord  Holt,  the  property 
of  the  owner  of  the  soil  on  which  they  are  living,  are  not  his  personal 
chattels,  so  as  to  be  the  subject  of  larceny.  They  partake,  while 
living,  of  the  quality  of  the  soil,  and  are,  like  growing  fruit,  con- 
sidered as  part  of  the  realty.  If  a  man  enters  my  orchard  and  fills 
a  wheelbarrow  with  apples,  which  he  has  gathered  from  my  trees, 
he  is  not  guilty  of  larceny,  though  he  has  certainly  possessed  him- 
self of  my  property;  and  the  same  principle  is  applicable  to  wild 
animals."  The  principle  is  as  old  as  11  Year  Book,  par.  33,  where 
it  is  reported  that  a  forester  who  had  cut  down  and  carried  away 
trees  could  not  be  arraigned  for  larceny,  though  it  was  a  breach  of 
trust;  but  it  was  said  it  would  have  been  a  different  thing  if  the  lord 
of  the  forest  had  cut  down  the  trees  and  the  forester  had  carried 
them  away.  Then  that  would  have  been  larceny.  So  that,  in  the 
case  of  wild  animals,  if  the  act  of  killing  and  reducing  the  animals 
into  possession  is  all  one  and  continuous,  the  offense  is  not  larceny. 
The  jury  have  found  in  this  case  that  the  prisoner  knew  all  about 
the  killing  of  the  rabbits,  and  that  they  were  lying  in  the  ditch.  It 
is  clear  that,  during  tli£_thre.e  hours,  they  \vere_lying  there,  no  one 
had  any  physical  possession  of  them,  and  that  they  were  still  left  on 
the  owner's  soil ;  but  I  do  not  see  that  that  makes  any  difference. 
Then  there  is  the  statement  from  Hale's  P.  C.  510,  where  it  is  said 
that  larceny  cannot  be  committed  of  things  that  adhere  to  the  free- 
hold, as  trees,  or  lead  of  a  house,  or  the  like,  yet  that  the  Court 
of  King's  Bench  decided  that,  where  a  man  severed  lead  from  West- 
minster Abbey,  and  after  about  an  hour's  time  came  and  fetched  it 
away,  it  was  felony,  because  the  act  is  not  continuous  but  interpolat- 
ed; and  Lord  Hale  refers  to  Dalton,  p.  166,  c.  103.  And  Gibbs,  C. 
J.,  expressed  the  same  view  very  clearly  in  Lee  v.  Risdon.  Now, 
if  that  is  to  be  understood  as  my  Brother  Bramweel  explained, 
I  have  no  fault  to  find  with  it ;  but  if  it  is  to  be  said  that  the  mere 
fact  that  the  chattel  having  been  left  for  a  time  on  the  land  of  the 
owner  has  thereby  remained  the  owner's  property,  'and  that  the 
person  coming  to  take  it  away  can  be  convicted  of  larceny,  I  cannot 
agree  with  it  as  at  present  advised.  If  we  are  to  follow  the  view 
taken  by  my  Brother  Bramwell  of  these  authorities,  they  do  not 
apply  here,  for  no  one  could  suppose  that  the  poachers  ever  part- 
ed with  the  possession  of  the  rabbits.  I  agree  that,  in  point  of 
principle,  it  cannot  make  any  difference  that  the  rabbits  were  left 
an  hour  or  so  in  a  place  of  deposit  on  the  owner's  land.  The  passage 
from  Lord  Hale  may  be  understood  in  the  way  my  Brother  Bram- 
WELL  has  interpreted  it,  and,  if  so,  the  facts  do  not  bring  this  case 
within  it. 
Conviction  quashed.1' 

>  in  Beg.  v.  Foley,  26  r<  R.  (Ireland)  280  (1889),  the  facta  were  that  Foley, 
a  former  tenant,  re-entered  the  premises  and  cn1  grass  belonging  to  the  land- 
lord.    Three  days  later  be  again  entered,  raked  the  grass,  and  carted   it 

nwiiy.    On  a  case  reserved  a  conviction  for  larceny  ()r  the  grass  was  afiirurcd; 


Sec.  1)  PKOPERTY    THE    SUBJECT    OF    LARCENY.  397 

COMMONWEALTH  v.   STEIMLING. 

(Supreme  Court  of  Pennsylvania,  1893.     156  Pa.  400,  27  Atl.  297.) 

Mr.  Justice  Williams.1  It  appeared  on  the  trial  that  Bower,  the 
prosecutor,  was  the  owner  of  a  farm  which  was  crossed  by  Mahanoy 
creek.  Some  distance  up  the  stream  coal  mines  were  in  operation  and 
had"  been  for  many  years.  The  culm  and  waste  from  the  mines  and 
breaker,  which  had  been  thrown  into,  or  piled  upon  the  bank  of,  the 
creek,  had  been  carried  down  the  stream  by  the  current  and  the  floods, 
and  deposited  in  the  channel  and  along  the  shores  in  considerable 
quantities.  This  material,  having  been  abandoned  by  its  original  own- 
ers, belonged  to  him  on  whose  land  the  water  left  it.  The  water,  drop- 
ping the  heavy  pieces  first  and  carrying  the  smaller  particles  and  dust 
along  in  the  current,  served  as  a  screen;  and  as  the  result  of  this 
process  considerable  quantities  of  coal  suitable  for  burning  were  lodged 
along  the  channel  and  the  banks  of  the  stream  throughout  its  course 
over  the  prosecutor's  farm.  The  defendant,  descending  the  stream 
with  a  flatboat,  entered  upon  the  lands  of  Bower  and  began  to  gather 
coal  from  the  surface.  He  was  provided  with  a  scoop  or  shovel  made 
of  strong  wire  or  iron  rods,  with  which  he  gathered  up  the  coal.  The 
sand  and  gravel  passed  through  the  meshes  of  the  scoop,  leaving  the 
pieces  of  coal  within  it.  When  the  gravel  was  all  sifted  out,  the  cleaned 
coal  was  emptied  upon  the  flatboat.  This  process  was  continued  un- 
til a  boat  load  was  obtained.  The  boat  was  then  towed  or  pushed  to 
some  bins  on  the  shore  opposite  to  Bower's  house,  and  the  coal  was 
transferred  from  the  boat  to  the  bins.  This  was  repeated  until  from 
8  to  12  tons  of  coal  had  been  gathered,  cleaned,  deposited  on  the  boat, 
transported  to  the  bins,  and  unloaded.  This  coal  was  afterwards  de- 
livered to  purchasers,  or  taken  for  consumption,  from  the  bins.  Here 
was  a  taking  with  intent  to  carry  away  and  convert,  a  carrying 
away,  and  an  actual  conversion,  which  the  commonwealth  held  sus- 
tained the  indictment  for  larceny.  The  learned  judge,  however,  in- 
structed   the   jury   that   the   process   of   collecting,   cleaning,   loading 

Palles,  C.  B.,  dissenting.  Gibson,  J.,  said:  "Townley's  Case  only  decides:  (1) 
That,  where  there  is  evidence  of  actual  possession  continuing,  the  fact  that 
there  is  an  interval  of  time  between  the  taking  and  carrying  away  does  not 
constitute  larceny  where  the  wrongdoer's  intention  is  not  abandoned  and  the 
transaction  is  in  substance  continuous ;  (2)  that  chattels  may  be  in  the  thief's 
possession,  though  left  on  the  owner's  land.  The  expressions  'abandon'  and 
'intention  to  abandon,'  found  in  the  report  of  Townley's  Case,  D.  R.  1  C.  C 
R.  315,  though  not  inappropriate  when  read  with  reference  to  the  special 
facts  of  that  case,  are  liable  to  misconstruction  if  employed  in  reference  to 
such  a  case  as  that  before  us.  Where  chattels,  after  severance,  are  left  on 
the  property  of  the  true  owner,  no  matter  what  the  wrongdoer's  intention 
may  be,  he  cannot  escape  the  common-law  doctrine,  if  his  possession  is  not 
In  fact  continuous.  Continuity  of  intention  is  not  the  equivalent  of  continuity 
of  possession.  The  transaction  here  was  not  continuous,  and  the  conviction 
is  right." 

i  Part  of  the  opinion  is  omitted. 


398  LARCENY.  (Ch.   13 

upon  the  flatboat,  transporting  to  the  bins,  and  unloading  the  coal 
into  them  must  be  regarded  as  one  continuous  act,  like  the  act  of 
him  who  tears  a  piece  of  lead  from  a  building  and  carries  it  off,  or 
who,  passing  an  orchard,  plucks  fruit  and  takes  it  away,  and  that 
the  defendant  was,  therefore,  a  trespasser  only.  The  distinction  in 
the  mind  of  the  learned  judge  was  that  between  real  and  personal 
estate.  The  coal  lying  upon  the  surface  he  held  to  be  real  estate. 
The  lifting  it  up  in  the  shovel  was  on  this  theory  a  severance,  which 
forcibly  changed  its  character  and  made  it  personal.  The  loading 
into  the  flatboat,  the  transportation  to  the  bins,  and  unloading  of  the 
boat,  all  of  which  acts  were  done  within  the  lines  of  the  prosecu- 
tor's land,  and  occupied  hours  of  time  for  each  boat  load,  were  so 
connected  with  the  severance  as  to  make  but  a  single  act.  For  this 
reason  he  held  that  the  defendant  was  guilty  of  a  trespass  only. 
The  common  law  did  distinguish  between  things  that  are  connected 
with  or  savor  of  the  real  estate  and  those  that  are  personal  goods. 
An  apple  growing  upon  a  tree  was  connected  with  the  land  by  means 
of  the  tree  that  bore  it,  and  so  held  to  partake  of  the  nature  of  the 
land,  and  to  be  real  estate.  One  who  plucked  it  from  the  tree,  and 
at  once  ate  or  carried  it  away,  was  therefore  a  trespasser;  but  if 
he  laid  it  down,  and  afterwards  carried  it  away,  so  that  the  taking 
and  the  asportation  were  not  one  and  the  same  act,  then,  if  the 
carrying  away  was  done  animo  furandi,  the  elements  of  larceny  were 
present. 

Blackstone  tells  us,  in  volume  4,  p.  233,  of  the  Commentaries,  that 
larceny  cannot  be  committed  of  things  that  savor  of  the  realty,  be- 
cause of  "a  subtility  in  the  legal  notions  of  our  ancestors."  He  then 
explains  the  subtile  distinction  as  follows:  "These  things  (things 
that  savor  of  the  realty)  were  parcel  of  the  real  estate,  and  there- 
fore, while  they  continued  so,  could  not  by  any  possibility  be  the 
subject  of  theft,  being  absolutely  fixed  and  immovable.  And  if  they 
were  severed  by  violence,  so  as  to  be  changed  into  movables,  and  at 
the  same  time,  by  one  and  the  same  continued  act,  carried  off  by 
the  person  who  severed  them,  they  could  never  be  said  to  be  taken 
from  their  proprietor  in  their  newly  acquired  state  of  mobility."  But 
he  explains  that,  if  the  act  of  severance  and  that  of  carrying  away 
be  separated,  so  that  they  do  not  constitute  "one  and  the  same  con- 
tinual act,"  the  subtile  distinction  between  personal  goods  and 
those  thai  savor  of  the  real  estate  ceases  to  protect  the  wrongdoer 
from  a  criminal  prosecution,  and  a  charge  of  larceny  can  be  sustain- 
ed. The  question  whether  this  coal,  lying  loose  upon  the  surface, 
like  other  drifl  of  the  stream,  was  real  or  personal  estate,  does  not 
to  have  been  raised  in  the  court  below,  and  it  is  not  before  us. 

The   real   question   presented    is   whether  this  case  upon  its    facts 

ie  for  the  application  of  the  common-law  rule.     Have  we  here 

erance  and  an   a  portation  that  constitute  "one  and   the   same 

continuous  act?"      If   the   picking  of  the  coal    from  the  surface  be 


Sec.  1)  PROPERTY   THE    SUBJECT   OF   LARCENY.  390 

treated  as  an  act  of  severance,  we  have  next  the  act  of  cleaning  and 
sifting,  then  the  deposit  of  the  cleaned  coal  upon  the  flatboat  little 
by  little,  then  the  transportation  of  the  boat  load  to  the  bins,  and  then 
the  process  of  shoveling  the  coal  from  the  boat  into  the  bins. 

The  acts,  occupying  considerable  time  for  each  boat  load,  were 
all  done  within  the  inclosures  of  the  prosecutor.  It  is  as  though 
one  should  come  with  team  and  farm  wagon  into  his  neighbor's 
corn  field  and  pluck  the  ears,  load  them  into  the  wagon,  and,  when 
the  wagon  would  hold  no  more,  draw  the  corn  away  to  his  own 
corn  house,  and  then  return  again,  and  continue  the  process  of  har- 
vesting in  the  same  manner  until  he  had  transferred  his  neighbor's 
crop  to  his  own  cribs.  If  such  acts  were  done  under  a  bona  fide 
claim  of  title  to  the  crop,  they  would  not  amount  to  larceny;  but,  if 
done  animo  furandi,  all  the  elements  of  larceny  would  be  present. 
In  the  case  before  us  it  is  conceded  that  the  coal  belonged  to  Bower, 
and  was  in  his  possession  as  part  of  his  real  estate.  The  defend- 
ant entered  his  lands  for  the  purpose  of  collecting  coal  and  carry- 
ing it  away.  He  makes  no  bona  fide  claim  of  title,  no  offer  to  pur- 
chase, sets  up  no  license,  but  rests  on  the  proposition  that,  like  the 
man  who  plucks  an  apple  from  a  tree  and  goes  his  way,  he  is  liable 
only  as  a  trespasser.  If  this  be  true,  he  could  gather  the  coal  from 
Bower's  land  as  often  as  the  stream  made  a  sufficient  deposit  to 
justify  the  expenditure  of  time  necessary  to  gather,  clean,  transport, 
and  put  it  in  bins.  Upon  the  same  principle  he  might  gather  all  the 
crops  growing  on  Bower's  farm  as  they  matured,  and  by  hauling 
each  load  away  when  it  was  made  up,  defend  against  the  charge 
of  larceny,  on  the  ground  that  the  gathering  from  the  tree,  the  stalk, 
or  the  hill,  the  loading  into  wagons,  and  the  carrying  of  the  loads 
away,  though  occupying  hours  for  each  load  and  many  days  for  the 
crop,  was  "one  and  the  same  continuous  act"  of  trespass.  We  can- 
not agree  to  such  an  extension  of  the  common-law  rule,  but  are  of 
the  opinion  that  this  case  should  have  gone  to  the  jury  on  the  exist- 
ence of  the  animo  furandi.2 

2  See,  also,  Bradford  v.  State,  6  Lea  (Tenn.)  634  (1881). 

Tfeere  can  be  no  larceny  of  abandoned  property.  In  Sikes  v.  State  (Tex. 
Cr.  App.)  28  S.  W.  GS,S  (1S94),  a  conviction  of  tbe  larceny  of  two  turbine 
wheels  that  had  been  left  by  the  owner  for  nine  years  on  the  right  of  way  of 
the  carrier  by  whom  they  had  been  transported,  was  upheld ;  and  in  Reg.  v. 
Edwards,  13  Cox,  C.  C.  384  (1877),  the  Court  for  Crown  Cases  Reserved  affirm- 
ed a  conviction  for  the  lai-ceny  of  three  pigs,  which  having  been  bitten  by  a  mad 
dog,  had  been  killed  and  buried  by  the  prisoner  for  the  owner. 

Estravs  are  subjects  of  larceny.  See  Crockford  v.  State,  73  Neb.  1,  102 
N.  W.  70  (1905). 


~    '      l|      u 


,^  c 


+4 


400 


LARCENY. 


(Ch.    13 


t{  J 


SECTION  2.— THE  OWNERSHIP  OF  THE  PROPERTY. 

■ 




HAYNES'  CASE. 
(Leicester  Assizes,  1577.    12  Coke,  113.) 


Note,  in  the  Lenten  Assize,  held  at  Leicester  11  and  12  Jac,  the 
case  was,  that  one  William  Haynes  had  digged  up  the  several  graves 
of  three  men  and  one  woman  in  the  night,  and  had  taken  their  wind- 
ing sheets  from  their  bodies,  and  buried  them  again;  and  it  was 
resolved  by  the  justices  at  Serjeants  Inn,  Fleet  street,  that  the  prop- 
erty of  the  sheets  remain  in  the  owners,  that  is,  in  him  who  had 
property  therein,  when  the  dead  body  was  wrapped  therewith,  for 
the  dead  body  is  not  capable  of  it,  as  in  11  Hen.  IV.  If  apparel  be 
put  upon  a  boy,  this  is  a  gift  in  the  law,  foFThe  boy  hath  capacity 
to  take  it;  but  a  dead  body  being  but  a  lump  of  earth  hath  no  ca- 
pacity; also  it  is  no  gift  to  the  person,  but  bestowed  on  the  body 
for  the  reverence  towards  it,  to  express  the  hope  of  resurrection. 
Also  a  man  cannot  relinquish  the  property  he  hath  to  his  goods,  un- 
less they  be  vested  in  another;  and  accordingly  at  the  said  assizes, 
he  was  severally  indicted  for  taking  each  of  these  sheets :  and  the 
first  indictment  was  of  petty  larceny,  for  which  he  was  whipped: 
and  at  the  same  assizes  he  was  also  indicted  for  the  felonious  tak- 
ing the  three  other  sheets,  for  which  he  had  his  clergy,  and  so  es- 
caped the  sentence  of  death,  which  he  well  deserved,  for  this  inhuman 
and  barbarous   felony.1 


ANONYMOUS. 

(Common  Pleas,  1510.    Keilw.  1G0,  pi.  2.) 

REDE,  C.  J.,  said,  that  if  one  rob  me  of  my  goods  and  another 
rob  him  of  the  same  goods,  I  have  an  appeal  of  robbery  against 
the  first  that  robbed  me,  and  against  the  second  also,  for  the  prop- 
erty in  the  goods  was  at  all  times  in  me.2 

i  St.  1  Jae  I,  c.  12,  made  it  felony  to  steal  bodies  for  purposes  of  witch- 
craft. 

2  Part  of  tills  case  is  omitted. 


Sec.  2)  THE   OWNERSHIP   OF  THE    PROPERTY,  401 

WARD  v.  PEOPLE. 
(Court  of  Errors  of  New  York,  1843.     6  Hill,  144.) 

Ward  was  indicted  for  petit  larceny  in  stealing  a  quantity  of 
butter,  stated  in  the  indictment  to  have  been  the  property  of  J.  Flagg. 
Flagg  testified  that  he  was  the  owner  of  the  butter  which  was  stol- 
en from  his  possession,  and  that  he  bought  it  of  the  master  of  a 
canal  boat.  Ward  thereupon  proposed  to  ask  the  witness  whether 
he  did  not  steal  the  butter  on  board  the  boat,  or  whether  he  and  the 
master  of  the  boat  did  not  steal  it  together,  which  question  was  ob- 
jected to  by  the  public  prosecutor  and  overruled  by  the  court.1 

Walworth,  Chancellor.  The  objection  was  properly  sustained 
upon  the  ground  that  the  answer  to  the  question  was  not  relevant 
to  the  matter  of  the  issue,  as  it  was  not  material  to  know  whether 
Flagg  became  possessed  of  the  butter  wrongfully  or  otherwise.  The 
plaintiff  in  error  was  therefore  rightfully  convicted,  *  *  *  and 
the  judgment  of  the  court  below  should  be  affirmed. 

Foster,  Senator,  said,  among  other  things,  that  the  Supreme  Court 
erred  in  overruling  the  question  put  to  Flagg.  Conceding  that  the 
witness  might  have  refused  to  answer,  because  of  the  danger  of  ex- 
posing himself  to  criminal  punishment,  was  this  a  ground  upon  which 
either  the  court  who  tried  the  cause  or  the  public  prosecutor  could 
interfere?  No.  The  privilege  was  that  of  the  witness,  and  he  alone 
had  the  right  to  avail  himself  of  it.  Nor  was  the  question  irrele- 
vant. It  called  for  an  answer  which  might  have  gone  far  towards 
discrediting  Flagg  with  the  jury. (f Besides,  it  was  relevant  by  way 
of  disproving  a  material  allegatidn  in  the  indictment,  viz.,  that  the 
article  stolen'  was  the  property  of  Flagg.  If  he  had  nothing  but 
a  possession  acquired  by  theft,  the  property  was  not  in  him,  but 
remained  where  it  was  before  the  theft  was  committed.  Common- 
wealth v.  Morse,  14  Mass.  217.  An  act  of  this  kind,  so  far  from 
divesting  the  property  of  the  owner,  does  not  even  change  the  pos- 
session, in  contemplation  of  law.  Per  Gould,  J.,  in  The  King  v. 
Wilkins,  1  Leach's  Cr.  Law,  520,  522.  It  is  true  the  proposition  is 
laid  down  by  East  and  some  other  elementary  writers  of  high  re- 
pute, that  "if  A.  steal  goods  of  B.,  and  after  C.  steal  the  same  goods 
from  A.,  C.  is  a  felon  both  as  to  A.  and  B. ;  and  he  may  be  indict- 
ed of  stealing  the  goods  of  B."  2  East's  Cr.  Law,  p.  654,  c.  16,  § 
90.  East  cites  Hale,  who  states  the  proposition  thus:  "If  A.  steals 
the  horse  of  B.,  and  after  C.  steals  the  same  horse  from  A.,  in  this 
case  C.  is  a  felon  both  as  to  A.  and  as  to  B.,  for  by  the  theft  by  A., 
B.  lost  not  the  property,  nor  in  law  the  possession  of  the  horse  or 
other  goods;  and  therefore  in  that  case  C.  may  be  appealed  of  fel- 
ony by  B.,  or  indicted  of  felony,  quod  cepit  et  asportavit  the  horse 

i  The  statement  is  abridged  from  the  opinion  of  Walworth,  Ch.,  and  part  of 
the  opinion  is  omitted. 
Mik.Cb.L.— 26 


402  LARCENY.  (Ch.    13 

of  B."  1  Hale's  P.  C.  507.  The  single  expression  made  use  of  by 
these  authors,  that  "C.  is  a  felon  both  as  to  A.  and  B.,"  may  indeed 
furnish  an  inference  favorable  to  the  doctrine  maintained  by  the 
court  below;  but  if  we  take  the  whole  passage  together,  especially 
as  quoted  from  Hale,  and  construe  it  in  reference  to  the  leading 
idea  which  the  writer  intended  to  illustrate,  it  furnishes  no  suffi- 
cient warrant  for  saying  that,  in  the  instance  put,  C.  might  be  in- 
dicted and  convicted  as  for  stealing  the  property  of  A.  On  the 
contrary,  Hale  expressly  affirms  that  B.  "lost  not  the  property,  nor 
in  law  the  possession";  and  this  accords  with  all  just  views  of  the 
nature  of  property  and  the  mode  of  its  acquisition.  I  have  been 
unable  to  find  any  adjudged  case  where  an  indictment  for  larceny 
has  been  sustained  which  alleged  the  property  to  be  in  one  who  had 
himself  stolen  it,  and  who  had  no  other  pretence  of  right  to  the  pos- 
session. Nor  do  I  believe  that  such  a  doctrine  can  be  established 
without  interfering  with  some  of  the  most  familiar  principles  of  the 
common  law. 

I  think  the  judgment  of  the  court  below  should  be  reversed. 

On  the  question  being  put,  "Shall  this  judgment  be  reversed?" 
the  members  of  the  court  voted  as  follows : 

For  reversal:  Senators  Bartut,  Dixon,  Foster,  Strong,  and 
Wright — 5. 

For  affirmance:  The  Chancellor,  and  Senators  Bockee,  Dennjs- 
ton,  Franklin,  Hard,  Lawrence,  T .<  >*i  r.  MiTCHEM,,  Platt,  Porter, 
Putnam,  Rhoads,  Scott,  and  Scovil — 14. 


ANONYMOUS. 
(King's  Bench,  1429.    Y.  B.  7  Hen.  VI,  42,  pi.  18.) 

It  was  said  if  I  bail  certain  goods  to  you  to  keep  and  afterward 
I  feloniously  retake  them,  I  shall  be  hanged,  notwithstanding  the 
property  was  in  me.    And  Norton  said  that  this  was  law.1 


HENRY  v.  STATE. 
(Supreme  Court  of  Georgia,  1900.    110  Ga.  750,  30  S.  E.  r>r>.  78  Am.  St.  Bop.  137.) 

LEWIS,  J.  Sherman  Henry  was  placed  upon  trial  in  the  city 
court  of  Albany,  upon  an  accusation  charging  him  with  entering  the 
dwelling  house  of  one  Tempie  Mack  with  intent  to  steal,  and  with 
wrongfully,  fraudulently,  and  privately  taking  and  carrying  away 
therefrom,  with  intent  to  steal  the  same,  one  suit  of  clothes  and  one  bi- 
cycle, of  the  value  of  $15,  the  personal  property  of  said  Mack.   To  this 

'  Part  of  this  rase  only  is  printed. 


Sec.  2)  THE    OWNERSHIP   OF   THE    FKOrERTY.  403 

accusation  he  pleaded  not  guilty.  Briefly  stated,  the  following  is  the 
substance  of  the  testimony  introduced  on  the  trial :  Tempie  Mack,  the 
prosecutrix,  testified  that  the  accused  came  to  her  to  engage  board. 
She  replied  to  him  that  he  would  have  to  pay  her  in  advance,  as  she 
had  lost  so  much  by  boarders.  Accused  replied  that  he  had  a  trunk 
full  of  clothes  and  a  bicycle,  and  that  he  would  deliver  them  to  her 
as  security  for  the  board.  This  conversation  took  place  during  the 
day,  and  that  night  the  accused  came  back  to  the  home  of  the  prose- 
cutrix, bringing  with  him  his  trunk  and  bicycle,  and  said:  "Here  is 
a  suit  of  clothes  that  cost  me  $8,  and  a  bicycle,  that  I  turn  over  to 
you  as  security  for  my  board."  She  accordingly  received  these 
chattels,  and  had  them  placed  in  a  room  in  her  house  occupied  by  her 
son.  The  accused  also  was  assigned  to  this  room,  where  he  lodged  as 
a  boarder.  He  kept  the  key  to  his  trunk,  wore  the  clothes,  and  rode 
the  bicycle  occasionally.  In  the  trunk  was  a  new  suit  of  clothes. 
He  agreed  to  pay  $2  per  week  for  board,  and  he  remained  in  the  house 
as  a  boarder  a  little  over  three  weeks,  for  which  he  was  due  $7. 
A  demand  was  made  on  him  for  the  money.  He  left  the  house, 
leaving  the  bicycle  and  trunk  therein.  Two  or  three  days  afterward 
the  landlady  missed  the  bicycle.  She  then  examined  the  trunk,  and 
found  the  new  suit  of  clothes  had  also  been  taken  away.  It  fur- 
ther appeared  from  the  testimony  that  the  accused  had  sold  the 
bicycle,  and  was  wearing  the  new  suit  of  clothes  in  another  place, 
where  he  was  engaged  in  work.  The  accused  introduced  no  evidence, 
but  made  a  statement,  in  which  he  admitted  that  he  told  the  land- 
lady his  trunk  and  clothes  would  be  responsible  for  his  board,  but 
denied  delivering  them  to  her,  stating  that  he  kept  the  key  to  his 
trunk,  wore  his  clothes,  and  rode  his  bicycle  whenever  he  wished ; 
said  he  did  not  intend  to  steal  anything,  but  he  put  on  the  new  suit 
of  clothes  to  attend  to  a  job  in  Arlington,  where  he  was  working 
when  arrested,  and  simply  desired  to  make  some  money  so  that  he 
could  pay  his  board.  The  judge  of  the  city  court,  before  whom  the 
case  was  tried  without  a  jury,  after  hearing  the  evidence,  found  the 
accused  guilty,  whereupoji_he_made  a  motion  for  a  new  trial,  on  the 
general  grounds  that  the  verdict  was  contrary  to  law  and  evidence. 
To  the  judgment  of  the  court  overruling  this  motion  the  accused  ex- 
ceptsT~ 

"There  can  be  no  question  about  the  soundness  of  the  proposition 
that  property  stolen  from  a  bailee  may  be  charged  in  an  indictment 
to  be  his  property,  and  authorities  have  even  gone  to  the  extent  of 
holding  that  property  stolen  from  one  who  had  himself  stolen  it 
could  be  alleged  as  his.  It  is  equally  true  that  property  in  the  hands 
of  a  bailee  may  be  stolen  by  the  general  owner.  Clark's  Criminal 
Law,  2!G-7;  18  Am.  &  Eng.  Enc.  L.  598,  599.  In  the  case  of  Wim- 
bish  v.  State,  89  Ga.  294,  15  S.  E.  325,  it  was  decided  by  this  court 
that  "the  ownership  of  personal  property,  in  an  indictment  for  lar- 
ceny, may  be  laid  in  a  bailee  having  possession  of  the  property  when 


404  LARCENY.  (Ch.   13 

it  was  stolen,  though  the  bailment  was  gratuitous."  In  Davis  v. 
State,  76  Ga.  721,  it  appears  that  the  accused  was  indicted  for 
obstructing  an  officer  in  the  execution  of  legal  process.  It  seems  that, 
after  a  levy  of  a  fi.  fa.  by  the  sheriff,  the  defendant  in  fi.  fa.  privately 
took  and  carried  the  property  levied  upon  to  an  adjoining  county. 
It  was  held  by  a  majority  of  this  court  that  this  did  not  constitute 
the  offense  with  which  he  was  charged,  and  on  page  722,  Justice  Bland- 
ford  says:  "In  this  case  that  which  the  plaintiffs  in  error  did  was 
not  to  oppose  the  officer,  but  it  was  to  defeat  the  execution  of  the 
process  by  committing  the  crime  of  simple  larceny.  *  *  *  The 
plaintiffs  in  error  should  have  been  indicted  for  simple  larceny,  and 
i  not  for  the  offense  for  which  they  were  indicted."  From  these 
principles  it  necessarily  follows  that,  when  property  has  been  deliver- 
ed by  the  owner  to  one  as  a  pledge  to  secure  a  debt,  the  pledgee  has 
sufficient  interest  in  the  same  to  maintain  a  prosecution  against  any 
one,  even  the  general  owner,  by  charging  that  the  property  belong- 
ed to  him,  the  pledgee.  We  do  not  understand,  however,  that  this 
principle  is  denied.  Counsel  for  plaintiff  in  error  seeks  a  reversal 
in  this  case  upon  the  idea  that  the  testimony  does  not  show  such  a 
delivery  of  the  property  in  question  as  would  constitute  a  valid  pledge 
in  law.  We  think  there  is  sufficient  testimony  for  the  judge  to  infer 
an  actual  delivery  by  the  accused  of  this  property  as  security  for  the 
payment  of  his  board.  The  fact  that  he  was  permitted  to  use  it  does 
not  deprive  the  pledgee  in  this  case  of  the  right  to  its  custody  and 
control.  Nothing  can  be  gathered  from  the  evidence  in  the  record 
to  indicate  that  she  ever  consented  to  such  a  use  or  disposition  of 
the  same  as  to  absolutely  deprive  her  of  such  possession.  A  por- 
tion of  the  property  pledged  was  actually  sold  to  another  party  by 
the  pledgor  without  her  knowledge  and  consent;  and  the  circumstances 
developed  by  the  evidence  touching  the  manner  of  its  disposition  by 
the  pledgor  were  amply  sufficient  for  the  judge  to  infer  that  he  had 
a  fraudulent  purpose  of  depriving  his  creditor  of  this  security.  This 
identical  question  was  made  and  passed  upon  by  the  Supreme  Court 
of  Iowa  in  the  case  of  Bruley  v.  Rose,  reported  in  57  Iowa,  651,  11 
X.  W.  629.  It  was  there  decided:  "A  pledgee  has  a  special  property 
in  the  thing  pledged,  and  a  pledgor  who  takes  the  property  from 
the  pledgee's  possession  with  the  felonious  design  of  depriving  such 
pledgee  of  his  security  may  be  guilty  of  larceny."  In  that  case  it 
appeared  that  Bruley  had  been  charged  with  larceny  of  a  span  of 
which  he  had  bought  from  Rose.  For  these  horses  Bruley 
was  indebted  to  Rose  in  the  sum  of  $45.60,  and  to  secure  the  payment 
of  this  balance  it  was  claimed  that  Bruley  delivered  the  horses  to 
Rose  as  a  pledge,  and  afterwards  gained  possession  of  them  under 
preti  ii  i  and  with  the  felonious  design  of  depriving  him  of 
his  security.  It  appeared  that  Rose  did  give  him  permission  to  take 
the  horses   for  a  particular  purpose.     It  was  accordingly  held  that, 


Sec.  2)  THE   OWNERSHIP  OF  THE   PROPERTY.  405 

if  he  took  them  for  a  fraudulent  purpose,  he  was  guilty  of  the  offense 
of  larceny. 

Applying  these  principles  to  the  facts  in  this  case,  we  think  the 
court  did  right  in  overruling  the  motion  for  a  new  trial.1 

Judgment  affirmed.     All  concurring,  except  Fish,  J.,  absent. 


ANONYMOUS,  1443. 

(Fitzherbert,    Abr.    Corone,    455.) 

Note. — By  Forster,  that  a  woman  cannot  steal  the  goods  of  her 
husband.     Porter  concurred. 


REGINA  v.  KENNY. 

(Court  of  Criminal  Appeal,  1877.    13  Cox,  C.  C.  307.) 

Case  reserved  for  the  opinion  of  this  court  by  the  Recorder  of 
Chester. 

At  the  Quarter  Sessions  for  the  city  and  borough  of  Chester  and 
county  of  the  same  city,  held  before  me  on  Monday,  the  8th  of  Jan- 
uary, 1877,  William  Edward  Kenney  was  tried  upon  an  indictment 
which  charged  him  in  the  first  count  with  stealing,  on  the  26th  of 
August,  1876,  certain  money  to  the  amount  of  £143,  one  purse,  one 
silver  watch,  one  child's  cloak,  one  scarf,  one  American  box,  one 
prayer  book,  two  money  bags,  and  other  articles  of  the  moneys, 
goods,  and  chattels  of  Edward  Gurn,  and  in  the  second  count  with 
feloniously  receiving  on  the  day  and  year  aforesaid  the  moneys, 
gdocls,  and  chattels  aforesaid,  well  knowing  the  same  to  have  been 
feloniously  stolen. 

The  counsel  for  the  prosecution  relied  on  the  second  count  of  the 
indictment  and  contended,  on  the  authority  of  the  cases  of  Reg.  v. 
Deer,  L.  &  C.  240,  9  Cox,  C.  C.  225,  and  Reg.  v.  Featherstone,  Dears. 
C.  C.  369,  6  Cox,  C.  C.  376,  that  the  wife  by  adultery  with  the  prisoner 
in  August,  at  Chester,  "determined  her  quality  of  wife,"  and  in  then 
converting  her  husband's  goods  to  her  own  use,  was  guilty  of  lar- 
ceny, and  that  the  prisoner  consequently  could  be  guilty  of  receiving.2 

Kelly,  C.  B.  I  am  of  the  opinion  that  the  conviction  must  be 
quashed.  This  is  not  a  case  of  stealing;  but  the  prisoner  has  been 
convicted  of  receiving  the  property  well  knowing  it  to  have  been 
stolen.     It  may  well  be  that  when  a  wife  has  taken  away  the  goods 

i  Accord:  State  v.  Nelson,  36  Wash.  12G,  78  Pac.  790,  68  L.  R.  A.  2S3,  104- 
Am.  St.  Rep.  945  (1904).  Compare  State  v.  Mazyck,  3  Rich.  Law  (S.  C.)  291 
(1832) ;   Adams  v.  State,  45  N.  J.  Law,  448  (1883). 

2  Part  of  this  case  is  omitted. 


i-cU    v 


406  LARCENY.  (Cll.    13 

of  her  husband  with  a  view  to  an  ulterior  adulterous  intercourse, 
and  her  adulterer  has  participated  in  the  act  of  taking  them  away, 
he  may  be  indicted  for  larceny.  This  view  seems  to  have  passed 
through  the  mind  of  Lord  Campbell,  C.  J.,  in  Reg.  v.  Featherstone ; 
but  there  is  nothing  in  that  case  to  show  that  a  wife  can  be  indicted 
for  stealing  the  property  of  her  husband.  In  the  present  case  trtf 
prisoner  is  not  convicted  for  stealing  the  property  of  the  husband 
and  it  is  possible,  if  he  had  been,  the  question  might  have  arisen 
whether  he  could  have  been  convicted  upon  the  evidence.  I  am 
far  from  saying  that  he  could  not.  That  is  not  the  case  here;  but 
the  prisoner  has  been  convicted  of  receiving,  and  the  case  fails  in 
showing  that  the  property  could  have  been  stolen  by  any  other  person 
than  the  prosecutor's  wife.  By  the  law  of  England  a  wife  cannot 
steal  her  husband's  property.  If  the  wife  has  not  stolen  the  prop- 
erty, there  was  no  evidence  of  the  property  having  been  stolen  at 
all,  and  therefore  the  conviction  of  the  prisoner  for  receiving  the 
property,  well  knowing  it  to  be  stolen,  cannot  be  sustained. 

Lush,  J.  I  am  of  the  same  opinion.  The  property,  if  stolen  in 
this  case,  must  have  been  stolen  by  the  wife.  It  is  admitted  that  the 
wife  did  not  steal  the  property  when  she  left  Burslem,  as  a  wife 
cannot  steal  her  husband's  property,  and  they  are  one  person  in  the 
eye  of  the  law,  and  neither  can  be  a  witness  for  or  against  the  other 
in  criminal  proceedings.  At  what  time,  then,  did  she  become  a  thief? 
It  is  said  when  she  became  an  adulteress.  But  how  can  that  be? 
Adultery  affords  ground  for  a  divorce,  but  the  mere  act  of  adultery 
does  not  make  a  difference  in  the  status  of  husband  and  wife  per  se, 
and  constitute  the  wife  a  thief  if  she  takes  away  her  husband's  prop- 
erty. Therefore,  if  the  property  was  not  stolen  by  the  wife  in  this 
case,  the  prisoner  could  not  be  guilty  of  receiving  it  well  knowing 
it  to  be  stolen.2 

Conviction  quashed.5 

2  Mel  lor.  J.,  and  Huddleston,  B.,  delivered  concurring  opinions,  and  Denman, 
J.,  concurred. 

The  law  has  been  changed  in  England  by  statute.  See  Reg.  v.  Streeter, 
■    p.  5  I".. 

i  Accord:  State  v.  Banks,  48  Ind.  107  (1874).  In  Beasley  v.  State,  138  Ind. 
552,  38  n  B.  35,  46  Am.  St.  Rep.  418  (1894),  it  was  held  that  under  the  stat- 
utes enabling  a  married  woman  to  hold  property,  the  husband  could  be  con- 
victed of  larceny  of  the  wife's  goods.  Contra:  Thomas  v.  Thomas,  51  111 
102  (1869);    State  v.  Parker,  3  Ohio  Dec.  (reprint),  551  (1S82). 


Sec.  2)  THE   OWNERSHIP   OF   THE   PROPERTY.  407 

REX  v.  BRAMLEY. 
(Court  for  Crown  Cases  Reserved,  1822.    Russ.  &  R.  478.) 

The  prisoner  was  tried  upon  a  charge  of  burglary,  before  Mr. 
Clarke,  the  king's  counsel,  at  the  Spring  Assizes  for  the  county  of 
Derby,  in  the  year  1822. 

The  indictment  charged  the  prisoner  with  a  burglary  in  the  dwelling 
house  of  one  Thomas  Noon,  and  with  stealing  a  box,  two  purses, 
£22.  10s.  in  silver,  6s.  3d.  in  copper,  a  promissory  note  for  the  pay- 
ment of  ilO,  and  18  promissory  notes  for  the  payment  of  £1  each, 
the  property  of  the  said  Thomas  Noon.  In  another  count  the  prop- 
erty was  stated  to  belong  to  Sarah  Sisson,  Ann  Fretwell,  and  Ann 
Noon. 

The  box  and  the  other  articles  (all  of  which  were  in  the  box  when 
taken  by  the  prisoner)  were  the  property  of  a  Female  Friends' 
Society,  established  under  St.  33  Geo.  Ill,  c.  54,  and  the  rules, 
orders,  and  regulations  of  which  had  been  exhibited  to,  and  allowed 
and  confirmed  by,  the  sessions,  as  directed  by  that  statute.  The 
society  held  their  meetings  at  a  public  house  kept  by  Thomas  Noon, 
the  person  mentioned  in  the  indictment;  and  the  funds  of  the  society 
were  kept  in  the  box,  which,  with  the  funds  it  contained,  was  always 
deposited  in  a  bed  chamber  in  the  house  of  Thomas  Noon  after  the 
meetings  of  the  society  had  ended.  It  was  directed  by  the  rules  of 
the  society  that  the  box  should  remain  in  the  custody  of  the  land- 
lord of  the  house,  or  any  other  person  whom  the  society  should  ap- 
point;  he  being  responsible  for  whatever  effects  were  lodged  therein. 

The  peTsonTTn  whom  the  property  was  laid  irT  one  uf  Llic  counts 
of  the  indictment,  namely,  Sarah  Sisson,  Ann  Fretwell  and  Ann 
Noon,  were  stewardesses  of  the  society,  appointed  according  to  its 
rules.  The  box  (as  directed  also  by  the  rules  of  the  society)  had 
three  different  locks  upon  it,  and  each  stewardess  had  one  key.  The 
stewardesses  were  (by  the  same  rules)  to  serve  for  one  year,  and 
then  to  resign  their  keys,  cash,  and  books  to  the  new  stewardesses. 

The  society  met  on  the  evening  of  the  night  in  which  the  offense 
was  committed,  and  the  dox  with  the  funds  in  it  was,  after  the 
meeting  broke  up,  deposited  in  the  usual  place  in  Thomas  Noon's 
house,  from  whence  it  was  afterwards  taken  by  the  prisoner,  who 
gained  admission  to  the  chamber  by  means  of  a  ladder  and  breaking 
open  the  window. 

The  prisoner  had  been  for  some  time  a  member  of  the  society. 
One  of  the  rules  of  the  society  was  that  each  member  should  pay  six-  y  ^ -\ 

pence  to  the  stock  every  fourth  Monday,  and  that  if  a  member  failed 
to  pay  for  four  successive  nights  she  should  be  excluded.  The 
prisoner  had  failed  to  pay  for  four  successive  nights,  the  last  of 
which  was  the  night  the  property  was  taken:  but  no  order  for 
excluding  her  had  been  made  by  the  society. 


408  larceny.  (Ch.  13 

The  prisoner  was  convicted,  but  a  case  was  reserved  for  the  opinion 
of  the  judges  upon  the  question  whether,  considering  the  situation 
in  which  the  prisoner  stood  with  respect  to  this  property,  the  con- 
viction was  proper. 

In  Easter  Term,  1822,  the  judges  (ten  of  them  being  present)  were 
clear  that,  as  the  landlord  was  answerable  to  the  society  for  the 
property,  the  conviction  was  right. 


REX  v.  WILLIS. 

(Court  for  Crown  Cases  Reserved,  1832.     1  Mood.  375.) 

The  prisoner,  the  wife  of  John  Willis,  was  tried  and  convicted  be- 
fore Mr.  Justice  Park,  at  the  Spring  Assizes  for  the  county  of  Wilts, 
in  the  year  1833,  for  stealing  25  sovereigns,  10  half  sovereigns,  8 
half  crowns,  and  40  shillings,  the  property  of  William  Orchard  and 
30  or  40  others,  and  amongst  them  the  prisoner's  husband,  all  of 
whom  were  named  in  the  indictment. 

This  was  a  case  of  a  friendly  society  held  at  the  public  house  kept 
by  the  prisoner's  husband,  he  being  a  member  of  the  society,  and 
the  box  containing  the  property  was  always  left  in  the  house_af_the 
husband  of  the  prisoner;  but  the  box  had  four  locks,  kept  by  the 
stewards,  of  whom  he  was  not  one. 

The  facts  of  the  case  were  quite  clear,  the  wife  having  broken  open 
this  box  and  stolen  a  great  deal  of  money  to  pay  some  debts  of  a 
former  husband,  and  the  jury  convicted  her  to  the  learned  judge's 
satisfaction  as  to  the  facts;  but  the  learned  judge  thought  it  right 
to  ask  the  opinion  of  the  judges  whether  a  wife  can  be  convicted  of 
larceny  in  stealing  money  in  which  her  husband  has  a  joint  property, 
and  deferred  the  sentence. 

The  learned  judge  referred  the  judges  to  1  Hale,  P.  C.  514,  Russell 
on  Crimes,  p.  19,  Rex  v.  Bramley,  Russ.  &  Ry.  478,  and  to  the  first 
case  in  the  Old  Bailey  Sessions  Papers  for  the  January  Sessions, 
1818,  tried  before  the  learned  judge,  in  the  presence  of  Lord  Tenter- 
den,  then  Mr.  Justice  Abbott. 

In  Easter  Term,  1833,  this  case  was  considered  at  a  meeting  of 
the  judges,  and  they  were  of  opinion  that  the  conviction  was  wrong, 
and  the  prisoner  was  discharged. 


Sec.  3)  THE    CAPTION    AND   ASPORTATION.  409 

SECTION  3.— THE  CAPTION  AND  ASPORTATION. 


CHERRY'S  CASE. 

(Court  for  Crown  Cases  Reserved,  1781.     2  East,  P.  C.  5.~G.) 

William  Cherry  was  indicted  for  stealing  a  wrapper  and  some 
pieces  of  linen  cloth;  and  it  appeared  that  the  linen  was  packed  up 
in  the  wrapper  in  the  common  form  of  a  long  square,  which  was  laid 
lengthway  in  a  wagon,  that  the  prisoner  set  up  the  wrapper  on  one 
end  in  the  wagon  for  the  greater  convenience  of  taking  the  linen  out, 
and  cut  the  wrapper  all  the  way  down  for  that  purpose,  but  was  ap- 
prehended before  he  had  taken  anything.  All  the  judges  agreed  that 
this  was  no  larceny,  although  his  intention  to  steal  was  manifest; 
for  a  carrying  away,  in  order  to  constitute  felony,  must  be  a  removal 
of  the  goods  from  the  place  where  they  were,  and  the  felon  must,  for 
the  instant  at  least,  have  the  entire  and  absolute  possession  of  them.1 


REGINA  v.  SIMPSON. 
(Court  for  Crown  Cases  Reserved,  1854.    1  Dears.  421.) 

The  following  case  was  reserved  for  the  opinion  of  the  Court 
of  Criminal  Appeal  by  W.  H.  Bodkin,  Esq.,  acting  as  assistant 
judge  of  the  Middlesex  Sessions. 

William  Simpson  was  tried  before  me  at  the  Sessions  of  the  Peace 
for  the  county  of  Middlesex,  in  July,  1854,  upon  an  indictment  which 
charged  him  with  having  stolen  from  the  person  of  Michael  Map- 
per a  gold  watch  and  chain,  his  property.  The  watch  was  carried 
by  the  prosecutor  in  the  pocket  of  his  waistcoat,  and  the  chain, 
which  was  at  one  end  attached  to  the  watch,  was  at  the  other  end 
passed  through  the  buttonhole  of  his  waistcoat,  where  it  was  kept 
by  a  watch  key,  turned  so  as  to  prevent  the  chain  slipping  through. 
The  prisoner  took  the  watch  out  of  the  prosecutor's  pocket,  and 
forcibly  drew  the  chain  out  of  the  buttonhole;  but  his  hand  was 
seized  by  the  prosecutor's  wife,  and  it  then  appeared  that,  although 

i  In  the  conference  on  this  case,  Mr.  Baron  Eyre  mentioned  a  case  before 
him  where  goods  in  a  shop  were  tied  to  a  string  which  was  fastened  by  one 
end  to  the  bottom  of  the  counter,  a  thief  took  up  the  goods  and  carried 
them  away  towards  the  door  as  far  as  the  string  would  permit,  and  this  he 
held  not  to  be  a  severance,  and  consequently  no  felony,  2  East,  P.  C.  556. 
And  the  principle  of  this  case  was  recognized  in  Wilkinson's  Case,  1  Hale, 
508,  where  one  had  his  keys  tied  to  the  strings  of  his  purse  in  his  pocket, 
which  the  prisoner  attempted  to  take  from  him  and  was  detected  with  the 
purse  in  his  hand,  but  the  strings  of  the  purse  still  hung  to  the  owner's 
pocket  by  means  of  the  keys,  and  this  was  ruled  to  be  no  asportation;  for 
the  purse  could  not  be  said  to  be  carried  away,  as  it  still  remained  fastened 
to  the  place  where  it  was  before.    Leach,  C.  C.  321,  note. 


•110  LARCENY.  (Cll.    13 

the  chain  and  watch  key  had  been  drawn  out  of  the  buttonhole,  the 
point  of  the  key  had  caught  upon  another  button,  and  was  thereby 
suspended.  It  was  contended  for  the  prisoner  that  he  was  guilty  of 
an  attempt  only;  but  I  thought  that,  as  the  chain  had  been  removed 
from  the  buttonhole,  the  felony  was  complete,  notwithstanding  its 
subsequent  detention  by  its  contact  with  the  other  button.  The  jury 
found  the  prisoner  guilty  of  the  felony;  and,  a  former  conviction 
having  been  proved,  he  was  sentenced  to  penal  servitude  for  four 
years.  The  execution  of  the  sentence  was  respited,  and  the  pris- 
oner was  committed  to  the  House  of  Correction,  Coldbath  Fields, 
where  he  now  is.  I  have  to  pray  the  judgment  of  this  honorable 
court  whether  the  facts  above  stated  justify  the  conviction  in  point 
of  law. 

This  case  was  argued  on  the  11th  of  November,  1854,  before 
Ji.kvis,  C.  J.,  Aederson,  B.,  Coleridge,  J.,  Martin,  B.,  and  Crow- 

DER,  J. 

Payne  appeared  for  the  crown,  and  Parry  for  the  prisoner. 
.  Parry,  for  the  prisoner.  The  conviction  was  wrong.  There  may 
have  been  a  simple  larceny,  but  the  asportation  was  not  sufficient 
to  warrant  a  conviction  for  stealing  from  the  person.  The  watch 
chain,  though  drawn  out  of  the  buttonhole,  caught  on  the  button, 
and  the  property  never  was  entirely  severed  from  the  prosecutor's 
person. 

Alderson,  B.  Whilst  it  was  between  the  button  and  the  button- 
hole, where  was  it? 

Parry.  It  was  about  the  person  of  the  prosecutor.  The  watch 
always  remained  about  his  person,  and  its  ultimate  condition  was 
that  it  was  suspended  from  the  button.  It  never  was  finally  and 
entirely  removed  from  the  person  of  the  prosecutor.  In  Rex  v. 
Wilkinson,  1  Hale,  P.  C.  508,  where  a  thief  took  from  the  pocket 
of  the  owner  a  purse,  to  the  strings  of  which  some  keys  were  tied, 
and  was  apprehended  with  the  purse  in  her  hand,  but  still  hanging 
by  means  of  the  keys  to  the  pocket  of  the  owner,  it  was  ruled  not 
to  be  larceny,  for  the  prosecutor  had  still,  in  law,  the  possession  of 
the  purse,  and  licet  cepit  non  asportavit. 

Coi.  I.     In  that  case  there  never  was  a  severance,  here  there 

was,  and  the  case  expressly  speaks  of  the  "subsequent  detention"  of 
the  chain. 

Parry.  It  is  not  necessary  for  me  to  go  so  far  as  that  case,  be- 
cause it  may  he  conceded  that  in  this  case  there  was  a  sufficient  as- 
portation to  support  a  charge  of  simple  larceny. 

AXDERSON,    B.     The   nearest  case   to  the  present  one   seems   to  be 
v.  Thomp  "ii,  i    Moo.  78. 

Parry.     In  thai  ca  e  a  pocketbook  was  drawn  by  the  prisoner  out 

of  the  owner's  inside  coat  pocket,  and  lifted  one  inch  above  the  top 

of  the  pocket,  and  then,  the  hand  of  the  thief  bring  caught,  it  fell 

into  the  pocket,  and,  though  all  the  judges  held  it  larceny,  they 

were   divided    whether    it    was    a    stealing    from    the    person,    as    the 


Sec.  3)  THE    CAPTION    AND   ASPORTATION.  411 

pocketbook  remained  about  the  person  of  the  owner;    and  the  ma- 
jority of  the  judges  held  that  it  was  not. 

Alderson,  B.  How  do  you  distinguish  this  case  from  Rex  v. 
Lapier,  1  Leach,  C.  C.  60,  in  which  the  earring  was  torn  from  a 
lady's  ear  and  fell  upon  her  curl? 

Parry.  There  the  forcing  it  from  her  ear  was  a  severance  from 
her  person,  but  I  contend  that  in  this  case  there  was  no  actual 
severance.  There  is  a  case  of  Rex  v.  Farrell,  1  Leach,  C.  C.  362, 
where  it  appeared  that  the  prisoner  stopped  the  prosecutor  as  he 
was  carrying  a  feather  bed  on  his  shoulders,  and  told  him  to  lay  it 
down  or  he  would  shoot  him,  and  the  prosecutor  accordingly  laid 
the  bed  on  the  ground,  but  the  prisoner  was  apprehended  before  he 
could  remove  it  from  the  spot  where  it  lay;  and  the  judges  were 
of  opinion  that  the  offense  of  robbery  was  not  completed.  All  the 
cases  show  the  wide  distinction  between  a  simple  larceny  and  a  steal- 
ing from  the  person.  The  distinction  is  one  which  ought  to  be  con- 
sidered strictly  in  favor  of  a  prisoner,  and,  although  this  case  may 
be  on  the  very  confines  of  a  severance,  I  contend  that  no  actual  sev- 
erance ever  took  place. 

Payne,  for  the  crown,  was  not  called  upon. 

Jervis,  C.  J.  We  all  are  of  opinion  that  the  conviction  was  right. 
This  case  is  in  no  respect  like  that  mentioned  by  Lord  Hale,  where 
the  prisoner  took  the  purse  attached  by  its  strings  to  the  keys,  which 
entangled  in  the  pocket  of  the  prosecutor.  In  that  case  there  was 
at  no  moment  the  slightest  severance  from  the  person;  but  this  is 
precisely  similar  to  Lapier's  Case,  in  which  the  jewel  was  torn  from 
the  ear  of  the  prosecutrix  and  dropped  amongst  her  curls.  The  ear 
in  Lapier's  Case  is  like  the  buttonhole  in  this,  and  the  curl  is  like 
the  button  below.  The  watch  was  no  doubt  temporarily,  though 
but  for  one  moment,  in  the  possession  of  the  prisoner.  In  Thomp- 
son's Case  there  seems  to  have  been  some  confusion  in  the  use  of 
the  expression  "about  the  person."  The  words  of  the  act  are  "from 
the  person,"  and,  with  submission  to  the  majority  of  the  judges  who 
held  the  asportation  in  that  case  not  to  be  sufficient,  I  think  the 
minority  were  right.  The  judges,  in  that  case  may  have  thought 
that  the  outer  coat  which  covered  the  pocket  formed  a  protection 
to  the  pocketbook;  but  we  must  not  fritter  away  the  law  by  refin- 
ing upon  nice  distinctions  in  a  way  to  prevent  our  decisions  from 
being  consistent  with  common  sense. 

Alderson,  B.  To  constitute  the  offense  there  must  be  a  removal 
of  the  property  from  the  person ;    but  a  hair's  breadth  will  do. 

The  other  learned  judges  concurred. 

Conviction  confirmed.1 

i  Accord:  As  to  simple  larceny.  Eckels  v.  State.  20  Ohio  St.  508  (1870); 
Harrison  v.  People,  50  N.  Y.  518.  10  Am.  Rep.  517  (1S72) ;  State  v.  Chambers, 
22  W.  Va.  779.  4G  Am.  Rep.  550  (1SS3) ;  Files  v.  State,  36  Tex.  Cr.  R.  20G, 
3G  S.  W.  93  (1S96). 


412  LARCENY.  (Cll.    13 

REGINA  v.  WALLIS. 

(Cambridgeshire  Assizes,  1848.    3  Cox,  C.  C.  67.) 

The  indictment  charged  the  prisoner  with  stealing  five  pints  of 
porter,  the  property  of  the  Eastern  Counties  Railway  Company,  at 
Cambridge.  The  evidence  showed  that  the  prisoner  had  made  a 
hole  in  the  barrel  through  which  the  porter  flowed  into  a  can  on 
the  ground,  and  that  a  witness  rushed  in  and  snatched  up  the  can 
while  the  porter  was  running  into  it  in  the  presence  of  the  prisoner. 

At  the  close  of  the  case  for  the  prosecution — 

Naylor,  for  the  prisoner,  submitted  that  there  was  no  sufficient 
asportavit;  there  was  a  stealing  and  taking,  but  no  carrying  away. 
R.  v.  Cherry,  2  East,  P.  C.  556.  So  in  a  case  at  Cambridge,  where 
a  man  indicted  for  horse-stealing  had  his  hand  on  the  halter  for  the 
purpose  of  leading  him  away,  the  judge  held  that  not  to  be  a  suffi- 
cient asportavit.  If  the  prisoner  were  answering  a  charge  of  ma- 
licious injury  to  property,  the  answer  would  be  that  there  was  a 
can  there  for  the  purpose  of  carrying  the  beer  away. 

Coltman,  J.  I  think  there  was  a  sufficient  asportavit  of  what 
was  run  out,  but  I  will  reserve  the  point. 

Wells,  for  the  prosecution. 

Verdict— Guilty. 


REGINA  v.  WHITE. 

(Court  of  Criminal  Appeal,  18.j3.    G  Cox,  C.  C.  213.) 

The  prisoner  was  indicted  at  the  last  Quarter  Sessions   for  Ber- 
wick-upon-Tweed,  for   stealing   5,000   cubic   feet  of   carburetted  hy- 
drogen gas,  of  the  goods,  chattels,  and  property  of  Robert  Oswald 
and  others.     Mr.  Oswald  was  a  partner  in  the  Berwick  Gas  Com- 
pany, and   the  prisoner,   a   householder   in   Berwick,   had   contracted 
with  the  company  for  the  supply  of  his  house  with  gas,  to  be  paid 
for  by  meter.     The  meter,  which  was  hired  by  the  prisoner  of  the 
company,   was   connected   with    an    entrance    pipe   through    which   it 
received  the  gas  from  the  company's  main  in  the  street,  and  an  exit 
pipe    through    which   the   gas    was   conveyed   to   the   burners.      The 
prisoner  had  the  control  of  the  stopcock  at  the  meter,  by  which  the 
gas   was   admitted    into   it   through    the   entrance   pipe,   and    he   only 
paid  the  company,  and  he  had  only  to  pay  them,  for  such  quantity 
i    as  appeared  by  the  index  of  the  meter  to  have  passed  through 
it.     The  entrance  and   exit    pipes  were  the  property  of  the  prisoner. 
The  prisoner,   In  avoid   paying   for   the    full   quantity   of   gas   consum- 
ed,   and    without    the    consent    or   knowledge    of   the    company,    had 
•  1    to   1"'    iii  erted   a   connecting   pipe  with   a  stopcock'  upon   it   in- 
to the  entrance  and  exit   pipes,   and  extending  between   them;    and, 


Sec.  3)  the  caption  and  asportation.  413 

the  entrance  pipe  being  charged  with  the  gas  of  the  company,  he 
shut  the  stopcock  at  the  meter,  so  that  gas  could  not  pass  into  it, 
and  opened  the  stopcock  in  the  connecting  pipe,  when  a  portion  of 
the  gas  ascended  through  the  connecting  pipe  into  the  exit  pipe,  and 
from  thence  to  the  burners,  and  was  consumed  there,  and  the  gas 
continued  so  to  ascend  and  be  consumed  until  by  shutting  the  stop- 
cock in  the  connecting  pipe  the  supply  was  cut  off.  This  operation 
was  proved  to  have  taken  place  at  the  time  specified  by  the  prose- 
cutor. It  was  contended  for  the  prisoner  that,  the  entrance  pipe, 
into  which  the  gas  passed  from  the  main,  being  the  property  of  the 
prisoner,  he  was  in  lawful  possession  of  the  gas  by  the  consent  of 
the  company  as  soon  as  it  had  been  let  into  his  entrance  pipe  out  of 
their  main,  and  that  his  diverting  the  gas  in  its  course  to  the  meter 
was  not  an  act  of  larceny.  I  told  the  jury  that  if  they  were  of  opin- 
ion, on  the  evidence,  that  the  entrance  pipe  was  used  by  the  com- 
pany for  the  conveyance  of  the  gas  by  the  permission  of  the  pris- 
oner, but  that  he  had  not  by  his  contract  any  interest  in  the  gas  or 
right  of  control  over  it  until  it  passed  through  the  meter,  his  prop- 
erty in  the  pipe  was  no  answer  to  the  charge,  that  there  was  nothing 
in  the  nature  of  gas  to  prevent  its  being  the  subject  of  larceny,  and 
that,  the  stopcock  on  the  connecting  pipe  being  opened  by  the  pris- 
oner, and  a  portion  of  the  gas  being  propelled  through  it  by  the 
necessary  action  of  the  atmosphere,  and  consumed  at  the  burners, 
there  was  a  sufficient  severance  of  that  portion  from  the  volume  of 
gas  in  the  entrance  pipe  to  constitute  an  asportavit  by  the  prisoner, 
and  that  if  the  gas  was  so  abstracted  with  a  fraudulent  intent  he 
was  guilty  of  larceny.  The  jury  answered  the  questions  put  to  them 
in  the  affirmative,  and  found  the  prisoner  guilty.  I  postponed  judg- 
ment, taking  recognizance  of  bail  according  to  the  statute  for  the 
appearance  of  the  prisoner  at  the  next  sessions  to  receive  judgment 
if  this  court  should  be  of  opinion  that  he  was  rightly  convicted.1 

Lord  Campbell,  C.  J.  I  think  that  the  conviction  ought  to  be 
affirmed,  and  that  the  direction  of  the  learned  Recorder  was  most 
accurate.  Gas  is  not  less  a  subject  of  larceny  than  wine  or  oil;  but 
is  there  here  a  felonious  asportation?  No  one  who  looks  at  the 
facts  can  doubt  it.  The  gas,  no  doubt,  is  supplied  to  a  vessel  which 
is  the  property  of  the  prisoner;  but  the  gas  was  still  in  the  posses- 
sion of  the  company.  Then,  being  in  the  possession  of  the  com- 
pany, and  their  property,  it  is  taken  away  animo  furandi  by  the 
prisoner.  If  the  property  remains  in  the  company  until  it  has  pass- 
ed the  meter,  which  is  found,  to  take  it  before  it  has  passed  the 
meter  constitutes  an  asportation.  If  the  asportation  was  with  a 
fraudulent  intent,  and  this  the  jury  also  have  found,  it  was  larceny. 
As  to  the  act  of  Parliament,  the  Legislature  has,  for  convenience 

i  The  argument  of  Ballantine  for  the  prisoner  is  omitted. 


414  LARCENY.  (Ch.    13 

sake,  added  a  specific  penalty ;  but  that  cannot  reduce  the  offense 
to  a  lower  degree.  My  Brother  MaulE  has,  however,  given  a  prob- 
able explanation  of  that  provision. 

Parke,  B.,  Maule,  J.,  Talfourd,  J.,  and  Martin,  B.,  concurred. 

Conviction  affirmed. 


Jp^i 


STATE  v.  ALEXANDER. 
(Supreme  Court  of  North  Carolina,  1876.     74  N.  C.  232.) 


Bynum,  J.  The  defendant  was  indicted  for  stealing  a  hog  run- 
ning at  large  in  the  "range."  The  hog  was  found  dead,  having 
been  shot.  Its  ears  had  been  cut  off,  and  one  of  its  hams  skinned, 
but  the  skin  had  not  been  severed  from  the  animal ;  no  part  being 
cut  off  except  the  ears.  There  was  no  evidence  that  the  hog  had 
been  killed  elsewhere  than  where  found,  or  had  been  removed  from 
the  spot  where  it  had  been  killed.  There  was  evidence  that  the  de- 
fendant shot  the  hog  and  did  the  skinning.  His  honor  charged  the 
jury  that  if  the  defendant  shot  and  skinned  the  hog,  as  alleged,  and 
had  it  under  his  control,  with  the  intent  to  steal,  there  was  in  law  a  suf- 
ficient asportation,  and  he  was  guilty.    There  is  error. 

To  complete  the  crime  of  larceny,  it~is~not~sufncient  that  the  de- 
fendant had  the  control  of  the  article — that  is,  had  the  power  to 
remove  it;  but  there  must  be  an  asportation  of  the  thing  alleged 
to  have  been  stolen.  It  is  true  a  very  slight  asportation  will  be  deem- 
ed sufficient,  yet  there  must  be  some  removal  to  complete  the  offense. 
The  case  here  shows  that  there  was  no  removal  of  the  hog,  but  that  it 
remained  in  situ,  as  it  had  been  shot  down.1  In  State  v.  Jones, 
65  N.  C.  395,  it  was  held  that  the  turning  of  a  barrel  of  turpentine, 
which  was  standing  upon  its  head,  over  upon  its  side,  with  a  felo- 
nious intent,  was  not  such  an  asportation  as  constituted  larceny.  So 
in  State  v.  Butler,  65  N.  C.  309,  which  is  a  case  almost  identical 
with  this,  it  was  held  that  an  indictment  at  common  law  for  stealing' 
a  cow  is  not  supported  by  proof  that  the  cow  was  shot  down  and 
her  ears  cut  off  by  the  defendant  with  a  felonious  intent,  because 
there  was  no  asportation  of  the  cow,  the  thing  charged  to  have  been 

cord:     Res  v.  Williams.  1   Mn.Mly,   107  Hslt.i;    State  v.  Seamier,  1   Rich. 

Law  is.  0.)  30,  42  Am.  Dec.  404  (1844);    P< le  v.  .Murphy.  -17  Oal.  L03  (1873); 

Williams  v.  state.  63  Miss.  58  (1885) ;  Molton  v.  State,  103  Ala.  IS.  16  South. 
7'.':.,  58  a  in.  si.  Rep,  97   (1894). 

Compare  Lundy  v.  State,  00  Ga.  148  (1878);  Kemp  v.  State,  s;>  Ala.  52,  7 
South.  U8  (1889);  State  v.  Gilbert,  ex  vt.  iss,  :;i  ail  r>!)7  (1S06);  Wilburn 
v.  Territory,  10  N.  M.  402,  62  Pac.  968  (1900) 

By  statute,  In  Texas,  asportation  is  ool  a  necessary  element  df  larceny.  "It 
is  only  necessary  thai  the  property  stolen  should  have  gone  Into  the  posses- 

!i    of    the    tliief.      It    nee. |    nut    be   earrieil    away    in   order    to    accomplish    Ha' 

offen  e."     Pen.  Code,  art.  880.     See  ciemmons  v.  State,  89  Tex.  Or.  n,  279, 
\v.  91  L  78  Am.  St   Rep.  923  (1898). 


SCO.  3)  THE    CAPTION    AND   ASPORTATION.  415 

stolen.     These  cases  and  others  of  our  own,  as  well  as  English,  are 
decisive.     State  v.   Jackson,   65   N.   C.   305;    Roscoe,   570;    2   Bish. 
Cr.  Law,  804;   2  East,  P.  C,  556. 
PfiR  Curiam.    Judgment  reversed.3 

CUMMINGS  v.  COMMONWEALTH.        '  j>  2  6  l   ** 
(Court  of  Appeals  of  Kentucky,  18S3.     5  Ky.  Law  Rep.  200.) 

Opinion  of  the  court  by  Chief  Justice  Hargis.8 

The  appellant,  Cummings,  according  to  the  evidence,  told  Sweet 
he  wished  to  sell  him  a  sow  and  pigs,  and,  after  agreement  on  the 
price  went  to  where  a  sow  and  pigs  were  lying  down  on  the  com- 
mons and  pointed  them  out  as  his,  and  Sweet  paid  him*$7  in  money 
for  them  and  then  drove  them  off.  The  sow  and  pigs  belonged  to  John 
Flauher,  who  lived  near  by. 

The  appellant  seems  to  have  been  out  of  money,  and  resorted  to 
this  means  of  obtaining  some  to  supply  his  wants,  and  then  proceeded 
to  the  fair. 

Having  been  convicted  of«the  offense  of  larceny  or  hog  stealing 
under  the  statute,  the  appellant  has  appealed,  and  his  counsel  contend 
that  his  offense  was  not  larceny,  because  there  was  no  asportation 
by  him;    but  it  was  obtaining  money  by  false  pretenses,  if  anything. 

He  was  not  indicted  for  obtaining  the  $7  for  the  sow  and  pigs, 
but  for  stealing  the  sow  and  pigs.  Whether  his  acts  constituted  both 
offenses  of  larceny  of  the  hogs  and  obtaining  money  by  false  pre- 
tenses, for  which  he  might  be  punished,  need  not  be  determined,  as 
there  has  been  no  attempt  to  try  him  twice  for  the  same  acts. 

The  owner  of  the  sow  and  pigs  never  parted  with  the  possession 
or  the  property  in  them.  The  asportation  was  by  the  hand  or  physi- 
cal act  of  Sweet;  but  the  act  of  felonious  taking  was  that  of  the  ap- 
pellant committed  through  Sweet,  who  was  his  instrument  in  com- 
mitting the  trespass  upon  the  property  of  Flauher. 

East,  Hale,  and  Hawkins,  who  are  approved  by  Archbold,  say  that 
if  the  taking  be  by  the  hand  of  another  it  is  the  same  as  if  by  the 
hand  of  the  thief  himself.     For  instance,  if  the  thief  procure  a  child 

2  "The  indictment  charges  that  the  prisoners  did  'take  and  carry  away' 
the  wheel.  To  take  an  article  signifies  merely  to  lay  hold  of,  grasp,  or  seize 
it,  with  the  hands  or  otherwise.  Webster.  With  this  understanding  of  the 
meaning  of  the  term,  can  it  be  reasonably  said  that  the  act  of  the  prisoners 
in  laying  hold  of,  and  with  a  sledge  breaking  the  wheel  in  pieces,  animo 
fnrandi,  was  not  a  taking  of  it  within  the  contemplation  of  the  criminal  law? 
We  think  not.  As  to  the  asportation  or  carrying  away  of  the  wheel,  *  *  * 
we  think  such  removal  might  be  properly  inferred  from  the  seizure  of  the 
wheel,  the  mode  of  breaking  it,  and  the  subsequent  disposition  made  of  its 
parts."    Lake,  O.  J.,  in  Gettinger  v.  State,  13  Neb.  308,  14  N.  W.  403  (1882). 

s  Part  of  the  opinion,  relating  to  another  point,  is  omitted. 


416  LARCENY.  (Ch.    13 

within  the  age  of  discretion,  or  an  idiot,  to  steal  goods  for  him,  such 
taking  must  be  charged  to  him. 

It  is  also  a  well-established  rule,  if  by  artifice  or  fraud  of  the  thief 
intending  to  steal  goods  the  owner  is  induced  to  part  with  their  pos- 
session merely,  and  does  not  part  with  the  title,  that  this  is  such  a 
taking  as  will  sustain  the  charge.  It  seems,  therefore,  that  instead 
of  fraudulently  procuring  the  owner  to  part  with  the  possession, 
the  appellant  sold  the  sow  and  pigs,  and  caused  her  removal  by  Sweet, 
who  was  innocent  in  the  trick  of  placing  the  asportation  on  him, 
and  it  should  be  treated  as  his  act  through  the  innocent  agency  of 
Sweet,  and  should  be  charged  to  him. 

The  judgment  is  therefore  affirmed.2 


SECTION  4.— THE  TRESPASS. 
I.  Possession  Necessary  for  Trespass  to  Attach. 


It  is  to  be  observed  that  all  felonies  irfclude  trespass,  and  that  every 
indictment  of  larceny  must  have  the  words  "felonice  cepit,"  as  well 
as  "asportavit,"  whence  it  follows  that,  if  the  party  be  guilty  of  no 
trespass  in  taking  the  goods,  he  cannot  be  guilty  of  felony  in  carrying 
them  away.     1  Hawkins,  P.  C.  142. 


REX  v.  DINGLE Y. 

(King's  Bench,  1GS7.     Show.  53.)  3 

A  servant  or  journeyman  employed  to  sell  goods,  and  receives 
money  for  his  master's  use,  sells  a  considerable  quantity  and  receives 
160  guineas  for  his  master,  and  goes  away  with  150  when  discharged, 
and  lays  the  10  in  a  private  place  in  the  chamber  where  he  lay;  thai 
being  discharged  his  master's  house  and  service,  he  afterwards,  in  the 
nighttime,  breaks  open  the  house  and  takes  the  10  guineas  so  hid. 
J  hid  no  burglary,  for  that  the  taking  the  money  was  not  felony,  for, 
though  his  master's  money  in  right,  yet  his  in  possession,  and  the 

■  Accord:  State  v.  Hunt,  45  Iowa,  <',7:'.  (1877);  Commonwealth  v.  Barry, 
126  Maas.  800  (1878);  Bikes  v.  State  (Tex.  Or.  App.)  28  B.  W.  ess  (1804); 
Lane  v.  State,  n  Tex.  Cr.  R.  568,  68  S.  W.  881  (I'.kk)).  But  Bee  People  v. 
Gillia,  8  Utah,  84,  21  Pac.  404  (1800). 

i  Tins  case,  as  printed,  Is  taken  from  sir  B.  Shower's  argument  In  Rex 
v.  Meen.  in  Bazeley'a  ('use,  Leach,  885,  Oonsl  read  a  substantially  similar 
statement  of  the  case  from  a  manuscript  report  in  the  possession  of  the 
Clerk  of  Arraigns  or  th<>  Old  Bailey. 


m- 


! 


•AT    ^ 

- 

j 


\-  it. 


Sec.  4)  TIIE  TRESPASS.  417 

first  original  act  is  no  lelony;  and  if  he  had  laid  it  underground  in 
the  garden,  and  afterwards  come  and  took  it  away,  this  would  have 
been  no  felony,  per  Wright,  Herbert,  Atkins,  Powell,  and  Holt. 


PENNSYLVANIA  v.  CAMPBELL. 

(Westmoreland  County  Court,  1794.    Add.  [Pa.]  232.) 

Campbell  was  indicted  for  stealing  a  $50  bank  note,  the  property 
of  Daniel  Prosser. 

William  Todd,  having  contracted  with  the  Governor  for  making 
a  certain  distance  of  the  state  road  from  Philadelphia  to  Pittsburg, 
employed  Campbell  and  Prosser  to  make  the  road  in  part  of  that 
distance,  and  advanced  $00,  viz.,  10  silver  dollars,  and  a  $50  bank 
.bill.  Campbell  took  up  the  bill,  and  Prosser  the  silver,  and  they  went 
to  a  neighboring  tavern  to  get  the  bill  changed  for  dollars,  and  then 
divide  the  whole  money  equally  between  them.  Not  getting  the  bill 
changed  at  the  tavern,  Campbell  desired  Prosser  to  give  him  the 
silver  and  take  the  note  to  another  tavern  on  his  way  home,  and  there 
have  it  changed,  and  give  him  his  share  afterwards.  The  note  was 
then  lying  on  the  table,  with  a  paper  in  which  it  had  been  given  them 
by  Todd.  Prosser  gave  Campbell  the  silver,  and  proceeded  to  take 
up  the  note.  Campbell  bade  him  stop  till  he  folded  it  up.  While 
Campbell  was  folding  it  up,  Prosser  turned  about  to  drink  with 
some  one  in  company.  Campbell  delivered  the  folded  paper  to  Pros- 
ser, who  immediately  put  it  in  his  pocket.  When  he  opened  the 
paper  at  home,  there  was  no  note  in  it.  There  was  some  evidence  that 
Campbell,  folding  and  delivering  the  paper  retained  a  dirty  paper,  and 
that  he  afterwards  proposed  to  pay  Prosser  $30,  on  his  return  from 
Philadelphia,  whither  he  was  going,  if  Prosser  would  swear  that  he  had 
lost  the  note.     This  Prosser  refused  to  do. 

Woods  and  Young,  for  the  defendant.  This  can  be  no  larceny ; 
for  there  never  was  a  possession  in  Prosser,  and  there  was  a  joint 
property.  Supposing,  therefore,  a  purloining  or  embezzling,  it  is 
not  stealing.    The  offense,  if  there  be  any,  is  of  another  kind,  a  cheat. 

Galbraith  and  Brackenridge,  for  the  state.  There  is  an  actual  and 
constructive  possession,  an  absolute  and  special  property;  and  lar- 
ceny may  be  of  either. 

President.  There  must  be  a  taking,  as  well  as  a  carrying 
away.  Unless  you  can  conclude,  from  the  proof,  that  Campbell  had 
abandoned  the  possession  of  the  note  to  Prosser,  who,  from  this 
abandonment  and  his  undertaking  to  change  the  note,  became  liable 
to  Campbell,  or  that  Prosser,  in  consequence  of  his  agreement  with 
consent  to  change,  had  taken  the  note,  he  had  no  possession,  v  There- 
fore there  can  be  no  taking,  and,  of  course,  no  larceny.  But  if  the  pos- 
session was  changed  from  Campbell  to  Prosser,  a  taking  and  a  carry- 
Mik.Cb.L.— 27 


418  LARCENY.  (Ch.    13 

ing  away  by  Campbell  would  be  larceny,  though  Prosser  had  a  share 
in  the  note ;  for  the  change  of  possession  rendered  Prosser  answerable 
to  Campbell  for  his  half.  If  the  possession  of  the  note  was  not  chang- 
ed, and  if  Campbell  imposed  an  empty  paper  for  one  inclosing  a  note, 
though  punishable  as  a  misdemeanor,  this  is  no  felonyA  Therefore, 
if  the  proof  amount  only  to  this,  there  can  be  no  conviction  on  this 
indictment,  although  you  or  I  may  think  that  there  is  little  natural 
difference  in  the  degree  of  enormity  of  such  misdemeanor  and  larceny. 
The  jury  found  him  guilty. 


REX  v.  BULL. 
(Court  for  Crown  Cases  Reserved,  1797.    2  Leach,  S41.)i 

The  prisoner,  Thomas  Bull,  was  tried  at  the  Old  Bailey,  January 
Session,  1797,  before  Mr.  Justice  Heath,  on  an  indictment  charging 
him  with  having  stolen,  on  the  7th  of  the  same  month,  a  half  crown 
and  three  shillings,  the  property  of  William  Tilt,  who  was  a  con- 
fectioner in  Cheapside,  with  whom  the  prisoner  lived  as  a  journeyman ; 
and  Mr.  Tilt  having  had,  for  some  time  before,  strong  suspicion  that 
the  prisoner  had  robbed  him,  adopted  the  following  method  for  the 
purpose  of  detecting  him:  On  the  7th  of  January,  the  day  laid  in 
the  indictment,  he  left  only  four  sixpences  in  the  till,  and,  taking 
two  half  crowns,  thirteen  shillings,  and  two  sixpences,  went  to  the 
house  of  Mr.  Garner,  a  watchmaker,  who  marked  the  two  half  crowns, 
several  of  the  shillings,  and  the  sixpences  with  a  tool,  used  in  his 
line  of  business,  that  impressed  a  figure  something  like  a  half  moon. 
Mr.  Tilt,  having  got  the  money  thus  marked,  went  into  the  house  of 
a  Mrs.  Hill,  and,  giving  a  half  crown  and  three  of  the  shillings  to 
Ann  Wilson,  one  of  her  servants,  and  five  of  the  shillings  and  the 
other  sixpence  to  Mary  Bushman,  another  of  her  servants,  desired 
them  to  proceed  to  his  house  and  purchase  some  of  his  goods  of  the 
prisoner,  whom  he  had  left  in  care  of  the  shop.  The  two  women  went 
accordingly  to  Mr.  Tilt's  shop,  where  Ann  Wilson  purchased  con- 
fectionery of  the  prisoner  to  the  amount  of  five  shillings  and  three- 
pence, gave  him  the  half  crown  and  three  shillings,  and  received  three- 
pence in  change ;  and  Mary  Bushman  purchased  of  him  articles  to 
the  amount  of  four  shillings  and  sixpence,  for  which  she  paid  him 
out  of  the  moneys  she  had  so  received,  and  returned  the  other  shilling 
to  her  mistress,  Mary  Hill.  Bui  neither  of  these  women  observed 
whether  thj  prisoner  put  cither  the  whole  or  any  part  of  the  money 
into  the  till  or  into  liis  pocket.  While  the  women,  however,  were 
purchasing  these  things,  Air.  Tilt  and  Mr.  Garner  were  waiting  with 


Sec.  4)  THE   TRESPASS.  419 

a  constable  at  a  convenient  distance  on  the  outside  of  the  shop  door ; 
and,  when  they  observed  the  women  come  out,  they  went  immediately 
into  the  shop,  where,  on  examining  the  prisoner's  pockets,  they  found 
among  the  silver  coin,  amounting  to  fifty-three  shillings,  which  he 
had  in  his  waistcoat  pocket,  the  marked  half  crowns  and  three  of  the 
marked  shillings  which  had  been  given  to  Wilson  and  Bushman ;  only 
seven  shillings  and  sixpence  were  found  in  the  till,  and  it  appeared 
that  Mrs.  Tilt  had  taken  one  shilling  in  the  shop  and  put  it  into  the 
till  during  her  husband's  absence,  so  that  the  two  shillings  which  had 
been  left  therein  in  the  morning,  the  one  shilling  which  Mrs.  Tilt  had 
put  into  it,  the  four  shillings  and  sixpence  laid  out  by  Mary  Bushman, 
and  the  five  shillings  and  sixpence  marked  money  which  was  found 
in  the  prisoner's  pocket,  made  up  the  sum  which  ought  to  have  been 
put  into  the  till.  The  prisoner,  upon  this  evidence,  was  found  guilty 
and  received  sentence  of  transportation.  But  a  case  was  reserved 
for  the  opinion  of  the  twelve  judges:  Whether,  as  Mr.  Tilt  had1 
dfvested  himself  of  this  money  by  giving  it  to  Mary  Hill,  who  had 
given  it  to  her  servants  in  the  manner  and  for  the  purpose  above 
described,  and  as  it  did  not  appear  that  the  prisoner  had,  on  receiv- 
ing it  from  them,  put  it  into  the  till  or  done  anything  with  it  that 
could  be  construed  a  restoring  it  to  the  possession  of  his  master, 
the  converting  of  it  to  his  own  use  by  putting  it  into  his  own  pocket 
could  amount  to  the  crime  of  •  larceny ;  it  being  essential  to  the 
commission  of  that  offense  that  the  goods  should  be  taken  from  the 
possession  of  the  owner,  and,  although  no  opinion  was  ever  pub- 
licly delivered  upon  this  case,  the  prisoner  was  discharged.2 


REX  v.  SULLENS. 

(Court  for  Crown  Cases  Reserved.  1826.     1  Mood.  129.) 

The  prisoner  was  tried  before  Alexander,  C.  B.,  at  the  Spring 
Assizes  for  the  county  of  Essex,  in  the  year  1826,  on  an  indictment 
at  common  law — the  first  count  of  which  charged  the  prisoner  with 
stealing  at  Doddinghurst,  on  the  25th  of  September,  1825,  one  prom- 
issory note,  value  £5,  the  property  of  Thomas  Nevill  and  George 
Nevill,  his  masters;  the  second  count,  with  stealing  silver  coin,  the 
property  of  Thomas  Nevill  and  George  Nevill. 

It  appeared  in  evidence  that  Thomas  Nevill,  the  prisoner's  master, 
gave  him  a  £5  country  note,  to  get  change,  on  the  said  25th  of  Sep- 
tember; that  he  got  change,  all  in  silver,  and  on  his  obtaining  the 
change  he  said  it  was  for  his  master,  and  that  his  master  sent  him. 
The  prisoner  never  returned. 

2  On  the  consultation  among  the  judges  on  this  case,  they  were  of  opinion 
that  Bull  was  not  guilty  of  felony,  but  only  of  a  breach  of  trust ;  the  money 
never  having  been  put  into  the  till,  and,  therefore,  not  having  been  in  the 
possession  of  the  master  as  against  the  defendant.    2  East,  P.  C.  572. 


420  LARCENY.  (Ch.   13 

The  jury  found  the  prisoner  not  guilty  on  the  first  count,  but  guilty 
on  the  second  count. 

The  question  reserved  for  the  consideration  of  the  judges  was 
whether  the  conviction  was  proper,  or  whether  the  indictment  should 
not  have  been  on  St.  39  Geo.  Ill,  c.  85,  for  embezzlement? 

In  Easter  Term,  1826,  the  judges  met  and  considered  this  case, 
and  held  that  the  conviction  was  wrong,  because,  as  the  masters 
never  had  possession  of  the  change,  except  by  the  hands  of  the  prison- 
er, he  was  only  amenable  under  St.  39  Geo.  Ill,  c.  85. x 


REGINA  v.  MASTERS. 

(Court  for  Crown  Cases  Reserved,  1S48.    1  Denison,  332.) 

Orlando  Masters,  a  clerk  in  the  employment  of  William  Holliday, 
was  tried  at  the  Michaelmas  Quarter  Sessions,  A.  D.  1848,  for  the 
borough  of  Birmingham,  on  an  indictment  charging  him  with  em- 
bezzling three  sums  of  money  received  by  him  for  and  on  account  of 
his  master,  the  prosecutor. 

It  appeared  in  evidence  that  the  course  of  business  adopted  by 
the  house  was  for  the  customers  to  pay  moneys  into  the  hands  of 
certain  persons,  who  paid  them  over  to  a  superintendent.  He  ac- 
counted with  the  prisoner,  and  paid  over  such  moneys  to  him,  and  the 
prisoner,  in  his  turn,  accounted  with  cashiers,  and  paid  over  the 
moneys  to  them — he  having  no  other  duty  to  perform  with  respect  to 
such  moneys  than  to  keep  an  account  which  might  act  as  a  check  on 
the  superintendent  and  the  cashiers ;  their  accounts  being  in  like 
manner  checks  upon  him.  These  four  parties  to  the  receipt  of  the 
moneys  are  all  servants  of  the  prosecutor. 

With  respect  to  the  three  sums  in  question,  it  was  proved  that 
they  passed  in  due  course  from  the  customers  through  the  hands  of 
the  immediate  receivers  and  the  superintendent  to  the  prisoner,  who 
willfully  and  fraudulently  retained  them. 

On  behalf  of  the  prisoner  it  was  objected,  on  the  authority  of 
Rex  v.  Murray,  1  Moody's  C.  C.  276,  that  the  moneys,  having  before 
they  reached  the  prisoner  been  in  the  possession  of  the  prosecutor's 
servants,  did  in  law  pass  to  the  prisoner  from  his  master,  and  that  con- 
sequently the  charge  of  embezzlement  could  not  be  sustained. 

The  Recorder  left  the  case  to  the  jury,  reserving  the  point. 

The  prisoner  was  convicted  and  sentenced  to  12  months'  imprison- 
ment, with  hard  labor. 

This  case  was  argued  before  POLLOCK,  C.  B.,  and  PaTTESON, 
Mahi.k,  Crkswki.i.,  and  I'.ii.i:,  JJ.,  on  the  11th  of  November,  1848, 
at  the  first  sitting  of  the  court  created  by  St.  11  &  12  Vict.  c.  78. 

i  Accord:  Reg.  v.  Btawtln,  7  Cur.  &  P.  281  (1836);  Commonwealth  v.  King, 
9  Gush,  (v  i  Ms.j2), 


Sec.  4)  THE   TRESPASS.  421 

Pollock,  C.  B.  The  court  are  unanimously  of  opinion  that 
no  further  argument  is  necessary.  This  case  is  quite  different  from 
that  of  R.  v.  Murray,  1  Moo.  C.  C.  276.  There  the  case  was  not 
within  St.  7  &  8  Geo.  IV,  c.  29,  §  47,  because  the  master  had  had 
possession  of  the  money  by  the  hands  of  another  servant,  and  when 
it  was  given  to  the  prisoner  by  that  servant,  to  be  paid  away  on  ac- 
count of  the  master,  it  must  be  deemed  in  law  to  have  been  so  given 
to  the  prisoner  by  his  master.  The  fraudulent  appropriation  of  it, 
being  thus  a  tortious  taking  in  the  first  instance,  was  not  embezzle- 
ment, but  larceny.  But  here  the  money  never  reached  the  master  at 
all.  It  was  stopped  by  the  prisoner  on  its  way  to  him.  The  original 
taking  was  lawful,  and  therefore  the  fraudulent  appropriation  was 
embezzlement. 


i-^rt       , 


REGINA  v.  KAY. 

(Court  for  Crown  Cases  Reserved,  1857.    7  Cox,  C.  C  289.) 

The  following  case  was  reserved  by  Bramwell,  B. : 

The  prisoner  was  tried  before  me  at  the  last  assizes  for  Ruthin  on 
an  indictment  which  charged  him  with  stealing  a  post  letter  and  a 
watch,  laid  to  be  the  property  of  the  Postmaster  General,|and  in  anoth- 
er count  of  Thomas  Jones. 

Thomas  Jones  had  bought  a  watch  in  London,  which,  requiring 
some  regulating,  he  had  sent  to  the  seller,  named  Myers.  A  letter 
was  written  by  some  person,  in  his  name  and  without  his  authority, 
requesting  the  seller  to  return  the  watch  to  him,  Thomas  Jones,  in 
a  letter  directed  to  the  care  of  the  postmaster  at  Brymbo.  After 
this  letter  had  been  written,  the  prisoner,  and  a  person  who  falsely 
represented  himself  to  be  Thomas  Jones,  came  to  the  Brymbo  post 
office  and  asked  for  the  watch.  It  had  not  arrived,  and  the  man 
personating  Thomas  Jones  requested  that,  when  it  did,  it  might  be 
delivered  to  the  prisoner.  This  was  accordingly  done  by  a  clerk  at 
the  post  office  at  the  prisoner's  request  next  day,  on  the  arrival  of 
the  watch.  It  must  be  taken  that  the  writing  of  the  letter,  the  per- 
sonation of  Thomas  Jones,  and  application  for  the  watch  were  parts 
of  the  same  scheme,  and  that  the  watch  was  sent  to  Brymbo  by  the 
seller  in  pursuance  of  the  fraudulent  letter. 

On  this  and  other  evidence  the  prisoner  was  convicted. 

Coluridgl,  J.,  now  delivered  the  judgment  of  the  court.  We 
are  of  opinion  that  the  prisoner  in  this  case  was  rightly  convicted 
of  felony.  Thomas  Jones,  the  owner  of  a  watch,  had  placed  it  with 
the  seller  for  a  specific  purpose,  the  regulating  it ;  and,  as  it  is 
not  stated  that  he  had  given  any  specific  directions  when  or  how  it  was 
to  be  returned,  it  must  be  taken  that  the  seller  had  no  authority  to 
deliver  it  to  any  one  but  Thomas  Jones,  or  some  one  commissioned 
by  him  to  receive  it.     By  the  fraud  of  the  prisoner  he  is  induced  to 


422  LARCENY.  (Ch.   13 

believe  that  Thomas  Jones  had  desired  him  to  send  it  by  post  to  the 
postmaster  at  Brymbo,  inclosed  in  a  letter  addressed  to  Thomas 
Jones.  The  postmaster,  also,  induced  by  the  fraud  of  the  prisoner, 
delivers  the  watch  to  him,  believing  him  to  be  Thomas  Jones  or  his 
agent,  and  thus  the  possession  is  obtained.  Now,  assuming  it  to 
have  been  correctly  contended  in  the  argument  that  the  seller  of  the 
watch  had  more  than  a  bare  charge  and  was  the  bailee  of  it,  yet  his 
special  property  has  not  put  an  end  to  the  general  property  of  the 
true  owner;  and  when  he  sent  the  watch  away  to  a  third  person, 
addressed  to  the  true  owner,  intending  such  third  person  to  deliver  it 
to  the  true  owner,  and  that  third  person,  the  postmaster,  received 
it  for  that  purpose,  the  seller's  possession  and  right  of  possession  and 
special  property  all  ceased.  The  general  property  of  the  true  owner 
became  entirely  unincumbered  and  drew  to  it  the  possession,  unless 
the  postmaster  himself  became  the  bailee,  as  the  seller  had  been  before. 
But  this  he  did  not,  according  to  Pearce's  Case,  2  East,  P.  C.  603, 
where  the  prisoner,  pretending  to  be  a  mail  guard,  obtained  from  the 
postmaster  the  bags  of  letters,  and  was  held  to  have  been  rightly 
convicted  of  stealing  letters  out  of  the  post  office ;  the  postmaster 
having  no  property  in  them,  but  only  a  charge.  Although  the  prisoner 
had  by  fraud  induced  the  seller  to  part  with  his  special  property,  as- 
suming that  he  had  such,  yet  no  possession  had  thereby  in  fact  be- 
come vested  in  him ;  and,  when  the  possession  in  fact  had  come  to  the 
postmaster,  it  would  be  unreasonable  to  hold  that  the  prisoner,  by 
calling  himself  Thomas  Jones,  and  falsely  pretending  to  be  the  true 
owner,  had  made  the  postmaster  his  servant  and  agent,  or  the 
postmaster's  actual  possession  his,  since  the  postmaster  had  receiv- 
ed it  for  the  true  owner  and  intended  to  deliver  it  to  the  true  owner. 
The  postmaster  being  the  servant  of  the  true  owner  for  this  purpose, 
his  possession  was  the  possession  of  the  true  owner,  and  could  not  be 
divested  by  the  tortious  taking  from  him,  according  to  Wilkin's  Case, 
2  East,  P.  C.  673,  674.  On  this  ground  the  prisoner's  offense  appears 
to  have  been  clearly  larceny. 
Conviction  affirmed.1 


REGINA  v.  REED. 
(Court  of  Criminal  Appeal,  L854.    6  Cox,  C.  c.  2S4.) 

The  following  case  was  reserved  by  the  Court  of  Quarter  Sessions 
for  the  county  of  Kent: 

At  tlie  General  Quarter  Sessions  of  the  Peace  for  the  county  of 
Kent,  holden  at  Maidstone,  on  the  4th  of  January,  1853,  before 
Aretus  Akers,  Edward  Burton,  and  James  Espinasse,  Esqs.,  jus- 
tices appointed  to  try  prisoners  in  a  separate  court,  Abraham  Reed 

i  Sec,  also,  People  v.  McDonald,  43  N.  Y.  61   (1870). 


Sec.  4)  THE   TRESPASS.  423 

was  tried  upon  an  indictment  for  feloniously  stealing  200  pounds 
weight  of  coals,  the  property  of  William  Newton,  his  master,  on  the 
6th  of  December,  1852,  and  James  Peerless  was  charged  in  the 
same  indictment  with  receiving  the  coals,  knowing  the  same  to  have 
been  stolen,  and  was  acquitted. 

The  evidence  of  the  prosecutor,  William  Newton,  was  as  follows : 
"I  am  a  grocer  and  miller  at  Cowden,  and  sell  coals  by  retail.  The 
prisoner,  Reed,  entered  my  service  last  year,  about  three  weeks  before 
the  6th  of  December.  On  that  day  I  gave  him  directions  to  go  to  a 
customer  to  take  some  flour,  and  thence  to  the  station  at  Edenbridge, 
for  12  hundredweight  of  coals.  I  deal  with  the  Medway  Company, 
who  have  a  wharf  there ;  Holman  being  wharfinger.  I  told  Reed  to 
bring  the  coals  to  my  house.  Peerless  lives  about  500  yards  out  of  the 
road  from  the  station  to  my  house.  Reed  went  about  9  a.  m.,  and 
ought  to  have  come  back  between  3  and  4  p.  m. ;  but,  as  he  had  not 
come  back,  I  went  in  search  of  him  at  half-past  6,  and  found  him  at 
Peerless'.  The  cart  was  standing  in  the  road  opposite  the  house,  and 
the  two  prisoners  were  taking  coals  from  the  cart  in  a  truck  basket. 
It  was  dark.  I  asked  Reed  what  business  he  had  there,  he  said:  'Tc 
deliver  half  a  hundredweight,  for  which  he  had  received  an  order  from 
Peerless.'  Reed  had  never  before  told  me  of  such  an  order,  and  had 
no  authority  from  me  to  sell  coals.  Later  that  evening  I  went  and 
asked  Peerless  what  coals  he  had  received  from  my  cart.  He  said : 
'Half  a  hundredweight.'  I  then  asked  him  how  they  were  carried 
from  the  cart.  He  said :  'In  a  sack.'  I  weighed  the  coals  when 
brought  home,  and  found  the  quantity  so  brought  a  quarter  of  a  hun- 
dredweight and  four  pounds  short.  I  went  to  Peerless'  next  day  and 
found  some  coals  there,  apparently  from  half  to  three-quarters  of  a 
hundredweight." 

This  case  was  first  argued  on  the  23d  of  April,  1853,  before  Jervis, 
C.  J.,  Parke,  B.,  Alderson,  B.,  Wightman,  J.,  and  Cresswell,  J.,  when 
the  court  took  time  to  consider  their  judgment.  The  court  after- 
wards directed  that  the  case  should  be  argued  before  all  the  judges, 
and  in  pursuance  of  that  direction  the  case  was  again  heard  on  the  19th 
of  November,  1853.1 

Lord  Campbell,  C.  J.  There  lies  before  me  a  judgment  that  I  had 
prepared  for  myself  at  a  time  when  there  was  reason  to  suppose  that 
there  might  be  one,  if  not  more,  dissenting  judges.  I  have  reason 
to  believe  now  that  there  will  not  be  any  dissent;  but  still  this  judg- 
ment must  be  considered  only  as  embodying  the  reasons  I  give  for  my 
opinion,  because  I  have  no  authority  to  say  that  my  Brothers  concur 
in  that  opinion  and  the  reasons  for  it.  For  convenience,  I  have  written 
my  judgment,  and  my  learned  Brothers  will  say  how  far  they  concur 
or  dissent.  I  am  of  opinion  that  the  prisoner  has  been  properly  con- 
victed of  larceny.     There  can  be  no  doubt  that,  in  such  a  case,  the 

i  Part  of  this  case  is  omitted. 


424  LARCENY.  (Ch.    13 

goods  must  have  been  in  the  actual  or  the  constructive  possession  of 
the  master,  and  that,  if  the  master  had  not  otherwise  the  possession 
of  them  than  by  the  bare  receipt  of  his  servant  upon  the  delivery  of 
another  for  the  master's  use,  although  as  against  third  persons  this 
is  in  law  a  receipt  of  the  goods  by  the  master,  yet  in  respect  of  the 
servant  himself  this  will  not  support  a  charge  of  larceny,  because  as 
to  him  there  was  no  tortious  taking  in  the  first  instance,  and  conse- 
quently no  trespass.  Therefore,  if  there  had  been  a  quantity  of  coals 
delivered  to  the  prisoner  for  the  prosecutor,  and  the  prisoner,  having 
remained  in  the  personal  possession  of  them,  as  by  carrying  them  on 
his  back  in  a  bag,  without  anything  having  been  done  to  determine  his 
original  exclusive  possession,  had  converted  them  animo  furandi,  he 
would  have  been  guilty  of  embezzlement,  and  not  of  larceny.  But  if 
the  servant  has  done  anything  which  determines  his  original  exclusive 
possession  of  the  goods,  so  that  the  master  thereby  comes  constructively 
into  possession,  and  the  servant  afterwards  converts  them  animo  fur- 
andi, he  is  guilty  of  larceny,  and  not  merely  of  a  breach  of  trust  at 
common  law,  or  of  embezzlement  under  the  statute.  On  this  supposi- 
tion he  subsequently  takes  the  goods  tortiously  in  converting  them,  and 
commits  a  trespass.  We  have,  therefore,  to  consider  whether  the  ex- 
clusive possession  of  the  coals  continued  with  the  prisoner  down  to 
the  time  of  the  conversion.  I  am  of  opinion  that  this  exclusive  pos- 
session was  determined  when  the  coals  were  deposited  in  the  prose- 
cutor's cart,  in  the  same  manner  as  if  they  had  been  deposited  in  the 
prosecutor's  cellar,  of  which  the  prisoner  had  the  charge.  The  prose- 
cutor was  undoubtedly  in  possession  of  the  cart  at  the  time  when  the 
coals  were  deposited  in  it;  and,  if  the  prisoner  had  carried  off  the 
cart  animo  furandi,  he  would  have  been  guilty  of  larceny.  That  is 
expressly  determined  in  Robinson's  Case,  2  East,  565.  There  seems 
considerable  difficulty  in  contending  that,  if  the  master  was  in  pos- 
session of  the  cart,  he  was  not  in  possession  of  the  coals  which  it  con- 
tained ;  the  coals  being  his  property,  and  deposited  there  by  his  order, 
for  his  use.  Mr.  Ribton  argued  that  the  goods  received  by  a  servant 
for  his  master  remain  in  the  exclusive  possession  of  the  servant  till 
they  have  reached  their  ultimate  destination.  But  he  was  unable,  not- 
withstanding his  learning  and  ingenuity,  to  give  any  definition  of  "ul- 
timate destination,"  when  so  used.  He  admitted  that  the  master's  con- 
structive possession  would  begin  before  the  coals  were  deposited  in 
the  cellar,  when  the  cart  containing  the  coals  had  stopped  at  his  door, 
and  even  when  it  had  entered  his  gate.  But  I  consider  the  point  of 
lime  to  be  regarded  is  that  when  the  coals  were  deposited  in  the  cart. 
Thenceforth  the  prisoner  had  only  the  custody  or  charge  of  the  coals, 
as  a  butler  has  of  his  master's  plate,  or  a  groom  has  of  his  master's 
horse.  To  this  conclusion,  with  the  most  sincere  deference  to  any  of 
my  learned  Brothers  who  may  at  any  time  have  taken  a  different  view 
— to  this  conclusion  I  should  have  come  on  principle;  and  I  think- 
that  Spears'  Case  is  an  express  authority  for  it.     There  is  no  con- 


Sec.  4)  THE  TRESPASS.  425 

flicting  authority;  for  in  all  the  cases  relied  upon  by  Mr.  Ribton  the 
exclusive  personal  possession  of  the  prisoner  had  continued  down  to 
the  time  of  the  wrongful  conversion.  It  is  said  there  is  great  subtlety 
in  giving  such  an  effect  to  the  deposit  of  the  coals  in  the  prosecutor's 
cart;  but  the  objection  rests  on  a  subtlety  wholly  unconnected  with 
the  moral  guilt  of  the  prisoner,  for  as  to  that  it  must  be  quite  imma- 
terial whether  the  property  in  the  coals  had  or  had  not  vested  in  the 
prosecutor  prior  to  the  time  when  they  were  delivered  to  the  prisoner. 
We  are  to  determine  whether  this  would  have  been  a  case  of  larceny 
at  common  law  before  there  was  any  statute  against  embezzlement ; 
and  I  do  not  think  that  there  would  have  been  any  reproach  to  the 
administration  of  justice  in  holding  that  the  subtlety  arising  from  the 
prosecutor  having  had  no  property  in  the  subject  of  the  larceny  before 
its  delivery  to  the  prisoner,  who  stole  it,  was  sufficiently  answered 
by  the  subtlety  that  when  the  prisoner  had  once  parted  with  the  per- 
sonal possession  of  it,  so  that  a  constructive  possession  by  the  prose- 
cutor began,  the  servant  who  subsequently  stole  it  should  be  liable  to 
be  punished  as  if  there  had  been  a  prior  property  and  possession  in 
the  prosecutor,  and  that  the  servant  should  be  adjudged  liable  to  be 
punished  for  a  crime,  instead  of  being  allowed  to  say  that  he  had  only 
committed  a  breach  of  trust,  for  which  he  might  be  sued  in  a  civil 
action.  -In  approaching  the  confines  of  different  offenses  created  by 
common  law  or  by  statute,  nice  distinctions  must  arise  and  must  be 
dealt  with.  In  the  present  case  it  is  satisfactory  to  think  that  the  ends 
of  justice  are  effectually  gained  by  affirming  the  conviction;  for  the 
only  objection  to  it  is  founded  upon  an  argument  that  he  ought  to 
have  been  convicted  of  another  offense  of  the  same  character,  for 
which  he  would  have  been  liable  to  the  same  punishment. 

Jervis,  C.  J.  I  concur  in  the  judgment  of  the  Lord  Chief  Justice. 
I  had  originally  written  a  judgment  concurring  in  the  view  taken  by 
my  lord,  but  ultimately  I  have  not  found  it  necessary  to  read  it.  It 
is  admitted  that  the  cart  was  in  the  possession  of  the  servant  for  a 
special  purpose.  If  he  had  taken  the  cart,  he  would  have  been  guilty 
of  larceny ;  and,  if  the  cart  for  this  purpose  continued  the  cart  of  the 
master,  the  delivery  of  the  coals  into  the  cart  was  a  delivery  to  the 
master,  and  makes  the  offense  a  larceny.2 

2  Parke,  B.,  thought  the  acts  of  the  prisoner  did  not  constitute  larceny, 
but  felt  bound  by  the  authority  of  Rex  v.  Abrahat,  2  Leach,  828,  and  Rex  v. 
Spears,  Id. 

"It  is  plain  that  the  mere  physical  presence  of  the  money  there  (in  the 
master's  till)  for  a  moment  is  not  conclusive,  while  the  servant  is  on  tlie  spot 
and  has  not  lost  his  power  over  it.  as,  for  instance,  if  the  servant  drops  it, 
and  instantly  picks  it  up  again.  Such  cases  are  among  the  few  in  which  the 
actual  intent  of  the  party  is  legally  important;  for,  apart  from  other  consider- 
ations, the  character  in  which  he  exercises  his  control  depends  entirely  upon 
himself.  Sloan  v.  Merrill,  135  Mass.  17,  19:  Jefferds  v.  Alvard,  151  Mass. 
94.  95,  23  N.  E.  734;  Commonwealth  v.  Drew,  153  Mass.  588.  594,  27  N.  E. 
593.  It  follows  from  what  we  have  said  that  the  defendant's  first  position 
cannot  be  maintained,  and  that  the  judge  was  right  in  charging  the  jury 
that  if  the  defendant,  before  he  placed  the  money  in  the  drawer,  intended  to 


426  LARCENY.  (Ch.   13 

II.  Trespass   in  Taking   Possession. 
REGINA  v.  REEVES. 

(Essex  Assizes,  1859.    5  Jur.  [N.  S.]  716.) 

Larceny.  The  prosecutor  deposed  that,  being  somewhat  tipsy, 
he  lay  on  the  ground  partly  asleep,  and  while  in  that  state  saw  the 
prisoner  take  his  watch  out  of  his  pocket,  which  he  took  no  steps  to 
prevent,  believing  that  the  prisoner,  with  whom  he  had  been  ac- 
quainted for  some  time,  was  acting  solely  from  friendly  motives.  Some 
days  after  he  claimed  his  watch  from  the  prisoner,  who  denied  hav- 
ing had  it;  but  other  witnesses  deposed  that  he  had  in  the  meantime 
offered  it  for  sale. 

F.  Robinson,  for  the  prisoner,  objected  that  there  was  no  trespass, 
and  consequently  no  larceny. 

Crowder,  J.  This  evidence  would  not  support  a  charge  of  lar- 
ceny at  common  law,  but  the  recent  statute  (St.  20  &  21  Vict.  c.  54, 
§  4),  enacts  that  "if  any  person,  being  a  bailee  of  any  property,  shall 
fraudulently  take  or  convert  the  same  to  his  own  use,  or  to  the  use 
of  any  person  other  than  the  owner  thereof,  although  he  shall  not 
break  bulk,  or  otherwise  determine  the  bailment,  he  shall  be  guilty 
of  larceny."  Here  the  evidence  discloses  a  bailment  sufficient  to 
bring  the  case  within  that  statute — i.  e.,  if  the  jury  are  satisfied  on  tEe 
facts. 

F.  Robinson.     The  point  is  quite  new. 

Verdict — Not  guilty. 





COMMONWEALTH  v.  WHITE. 

(Supreme  Judicial   Court  of  Massachusetts,   1S53.     Go  Mass.  483.) 

Indictment  for  larceny  from  a  stable,  of  a  horse,  wagon,  and  har- 
ness, alleged  to  have  been  committed  in  the  county  of  Bristol.  The 
stable  was  situated  in  Easton,  in  that  county,  and  the  property  be- 
longed to  John  McDonald.  At  the  trial  in  the  court  of  common  pleas, 
before  Wells,  C.  J.,  the  evidence  tended  to  prove  that  said  property 
was  in  the  stable  of  the  owner,  who  was  absent.  The  said  James 
White  represented  to  Josiah  White,  Jr.,  the  other  defendant,  that  he 
had  hired  the  horse  and  wagon  of  the  owner,  and  invited  him  to  go  to 
North   Bri<  r.     They  harnessed  the  horse  about  5  o'clock  p.  m. 

and  started,  and  met  the  owner.  He  called  to  them  to  stop,  but  they 
passed  on  without  heeding  him.     They   went  to  North   Bridgcwater, 

appropriate  it.  and  with  thai  Intenl  simply  pul  it  Into  the  drawer  for  his  own 
convenience  In  keeping  11  for  himself,  thai  would  not  make  his  appropriation 
of  it  just  afterwards  larceny."  Eolmes,  J.,  In  Commonwealth  v.  Ryan,  155 
Mass.  52B,  80  N.  B.  364,  IS  L.  k.  a.  817,  81  Am.  St  Rep.  GOO  (1892). 


Sec.  4)  THE    TRESPASS.  i-'t 

and  stayed  there  till  evening,  when  they  started  on  their  way  back. 
The  horse  becoming  disabled  by  a  fall,  they  unharnessed  him,  turned 
him  loose,  and  took  another  horse  from  a  pasture  near  the  road,  and 
harnessed  him  into  the  wagon,  and  proceeded  into  Easton  on  the 
road  towards  the  stable  of  the  owner.  While  riding  along  in  the 
town  of  Easton,  James  White  proposed  to  Josiah  to  go  to  Brighton, 
in  the  county  of  Middlesex.  Josiah  consented,  and  they,  while  in  the 
town  of  Easton,  turned  from  the  road  leading  to  the  stable  of  Mc- 
Donald and  drove  to  Brighton.  And  there  Josiah,  under  the  instruc- 
tion and  direction  of  James,  put  the  property  into  the  hands  of  an 
auctioneer,  stating  that  his  name  was  Johnson,  and  that  the  horse  be- 
longed to  his  father,  who  had  given  him  leave  to  sell  him.  The  auc- 
tioneer sold  the  same,  but,  something  happening  to  excite  his  sus- 
picions, he  refused  to  pay  over  the  money.  McDonald  testified  that 
he  did  not  let  the  horse,  wagon,  and  harness,  or  either  of  them,  to 
James  White,  nor  had  he  ever  let  to  him  any  horse,  wagon,  or  harness, 
but  that  he  had  sometimes,  but  not  on  this  occasion,  let  to  Josiah 
White,  Sr.,  the  wagon  and  harness,  but  never  that  horse;  that  he 
did  not  use  any  force  to  stop  defendants,  when  he  met  them,  because 
it  would  have  been  very  inconvenient  for  him  to  have  got  off  from 
his  load;  and  that  he  expected  they  would  return  the  horse  and 
wagon. 

The  counsel  for  the  defendant  contended:  (1)  That  if  the  prop- 
erty was  let  to  James  White  and  Josiah  White,  Jr.,  there  was  no 
larceny.  (2)  That  if  the  defendant  took  the  property  without  leave, 
although  the  taking  was  a  trespass,  but  if  he  intended,  when  he  took 
it,  to  return  it,  there  was  no  larceny,  although,  while  on  the  way,  he 
should  determine  to  appropriate  the  property,  and  should  proceed  to 
do  with  it  as  appeared  from  the  testimony.  (3)  That  there  was  no 
evidence  of  such  a  conversion  of  the  property  as  would  amount  to 
the  crime  of  larceny,  if  the  property  was  taken  without  leave,  but  with 
the  intention  at  the  time  of  returning  it. 

But  the  court  instructed  the  jury  that  if  the  taking  was  a  trespass, 
and  if  the  trespasser,  at  the  time  of  taking,  intended  to  appropriate 
the  property  to  his  own  use,  the  taking  would  be  a  larceny  of  the 
entire  property  V  If  the  taking  was  a  trespass,  but  the  defendant  in- 
tended at  the  pme  of  taking  to  return  the  property,  and  this  inten- 
tion continued'  until  after  the  shifting  of  the  horses,  there  was  no 
larceny  of  the  horse.  But  if  afterwards,  and  before  proposing  to  go 
to  Brighton,  the  defendant  determined  to  take  the  property  to  Brigh- 
ton and  there  dispose  of  it  as  his  own,  and  he  did  in  pursuance  of 
that  determination  do  that  which  was  stated  in  the  testimony,  this 
would  amount  to  larceny  of  the  wagon  and  harness. 

The  jury  found  the  defendant  guilty  of  simple  larceny  of  the  wagon 
and  harness,  and  not  guilty  of  the  residue  of  the  charge  in  the  in- 
dictment, and  to  these  instructions  the  defendant  excepted.1 

i  Argument  of  counsel  is  omitted. 


428  LARCENY.  (Ch.   13 

Merrick,  J.  There  appears  to  be  no  legal  objection  to  the  con- 
viction of  the  defendant.  The  questions  of  fact  which  arose  upon 
the  trial  were  submitted  to  the  jury,  under  suitable  and  accurate  in- 
structions in  matters  of  law.  The  wrongful  taking  of  goods  by  a 
party  with  an  intent  to  assume  them  as  his  own,  or  to  convert  them 
to  his  own  use,  is  a  trespass  merely.  And  in  many  cases  the  subse- 
quent fraudulent  appropriation  and  conversion  of  goods,  the  pos- 
session of  which  has  been  rightfully  obtained,  does  not  constitute  a 
felony.  Rose.  Crim.  Ev.  472,  478;  Archb.  Crim.  PL  186.  Butjf 
a  person  by  committing  a  trespass  has  tortiously  and  unlawfully  ac- 
quired possession  of  personal  property  belonging  to  another,  and 
afterwards  conceives  the  purpose  of  fraudulently  depriving  the  owner 
of  it,  and  in  pursuance  of  that  design,  with  a  felonious  intent,  car- 
ries it  away  and  converts  it  to  his  own  use,  he  thereby  commits  and 
is  guilty  of  the  crime  of  larceny.  1  Hale,  P.  C.  507;  2  East,  P.  C. 
662;  Regina  v.  Riley,  1  Dears.  C.  C.  149.  This  is  the  effect  and 
substance  of  the  explanation  and  statement  of  the  law  made  by  the 
presiding  judge  upon  the  trial.  While  the  defendant  was  on  his 
way  to  North  Bridgewater,  and  also  during  the  time  of  his  return, 
until  he  fraudulently  determined  to  appropriate  and  convert  the  horse 
to  his  own  use,  and  until  he  did  some  act  in  execution  of  that  purpose, 
he  was  only  a  trespasser;  but  he  made  himself  a  thief  as  soon  as 
he  drove  or  led  away  the  horse,  or  made  any  disposition  of  him  with 
such  a  felonious  intent.  This,  indeed,  is  not  strenuously  denied  by 
his  counsel,  who  relies,  in  the  defense,  much  more  upon  the  objection 
that  no  larceny  was  committed  before  the  arrival  of  the  defendant 
at  Brighton  in  the  county  of  Middlesex.  But  it  is  clear  that  the 
crime  had  been  fully  committed  at  an  earlier  period.  The  jury  must 
have  found,  under  the  direction  of  the  court,  that  the  defendant 
formed  the  determination  to  take  the  property  to  Brighton  and  there 
dispose  of  it  as  his  own  before  "the  horses  were  shifted,"  and  that  he 
drove  on  in  execution  of  that  design  until  the  horse  became  "dis- 
abled by  a  fall."  Here,  then,  while  the  defendant  was  still  in  the 
county  of  Bristol,  are  developed  the  existence  of  all  the  elements  of 
the  crime  of  larceny — the  unlawful  taking,  the  felonious  intent,  and 
the  fraudulent  conversion  of  the  property  to  his  own  use.  Upon 
such  proof  a  conviction  was  inevitable,  and  the  verdict  against  the 
ndant  must  therefore  be  affirmed. 
Exceptions  overruled.2 

i  Accord:     Reg.  v.   Riley,  l   Deare.  149  (1858);    Weaver  v.  State,  77  Ala. 
20  (1SS4);    Dozler  v.  State,  130  Ala.  07,  30  South.  896  (l'JOl). 


Sec.  4)  THE   TRESPASS.  429 

MITCHUM  v.   STATE. 
(Supreme  Court  of  Alabama,  1871.    45  Ala.  20.) 

Appeal  from  circuit  court  of  Shelby.  Tried  before  Hon.  Chas. 
Pelham.  The  facts  material  to  the  point  decided  will  be  found  in 
the  opinion. 

Cobb  and  Lewis,  for  appellant.  The  testimony  shows  that  the 
matches  were  placed  upon  the  counter  for  the  use  of  the  public  and 
the  accommodation  of  the  public ;  that  any  and  every  person  had  the 
right  to  take  the  matches  without  limit  to  light  their  pipes  and  cigars. 
The  defendant  certainly  had  the  right  to  take  the  matches  to  light 
his  pipe  or  cigar,  and  he  had  the  right  to  use  the  entire  box  in  this 
way.  The  fact  that  he  may  have  used  them  for  a  different  purpose 
would  not  make  the  taking  felonious. 

There  can  be  no  larceny  where  the  owner  consents  to  the  taking. 
The  taking  must  be  without  authority  and  against  the  will  of  the 
owner.  If  the  taking  is  not  felonious,  although  the  property  may  be 
converted  to  an  improper  use,  yet  the  defendant  is  not  guilty  of  lar- 
ceny. 

John  W.  A.  Sanford,  Attorney  General,  contra. 

B.  F.  SaffoIvD,  J.  The  defendant  was  indicted  for  petit  larceny. 
On  the  trial,  the  evidence  material  to  the  exception  taken  by  him  was 
that  the  box  of  matches,  the  subject  of  the  larceny,  was  placed  on 
the  counter  of  the  store  to  be  used  by  the  public  in  lighting  their  pipes 
and  cigars  in  the  room,  and  for  their  accommodation,  and  was  taken 
therefrom  by  the  defendant.  The  court  was  requested  by  the  pris- 
oner to  charge  the  jury  that  if  the  matches  were  placed  on  the  counter 
of  the  storehouse  for  the  use  of  customers,  or  the  public,  and  they 
were  taken  while  there  for  such  use,  the  defendant  was  not  guilty. 
The  charge  was  refused,  and  the  defendant  excepted. 

Larceny  may  be  committed  of  property  under  the  circumstances 
attached  to  the  box  of  matches.  The  owner  had  not  abandoned  his 
right  to  them.  They  could  only  be  appropriated  in  a  particular  man- 
ner and  in  very  limited  quantity,  with  his  consent.  Taking  them  by 
the  boxful  without  felonious  intent  would  have  been  a  trespass,  and 
with  it,  a  larceny.     The  ownership  was  sufficiently  proved. 

The  judgment  is  affirmed. 


430  LARCENY.  (Ch.   13 

BUTLER'S  CASE. 

(Suffolk  Assizes,  15S5.     7  Coke,  53.)1 

Coke,  C.  J.,  reported  a  case  which  was  where  Butler  and  others 
upon  the  sea,  next  to  the  town  of  Laystoft,  in  Suffolk,  robbed  divers 
of  the  queen's  subjects,  and  spoiled  them  of  their  goods,  which  goods 
they  brought  into  Norfolk;  and  there  they  were  apprehended,  and 
there  brought  before  me,  then  a  justice  of  the  peace  within  the  same 
county,  whom  I  examined;  and  in  the  end  they  confessed  a  cruel 
and  barbarous  piracy,  and  that  those  goods  which  then  they  had 
with  them  were  part  of  the  goods  which  they  had  robbed  from  the 
queen's  subjects  upon  the  high  sea ;  and  I  was  of  opinion  that  in  that 
case  it  could  not  be  felony,  punishable  by  the  common  law,  because 
that  the  original  act  (scil.),  the  taking  of  them,  was  not  any  offence 
whereof  the  common  law  taketh  knowledge;  and  by  consequence, 
the  bringing  of  them  into  a  county  could  not  make  the  same  felony 
punishable  by  our  law;  and  it  is  not  like  where  one  stealeth  goods 
in  one  county  and  brings  them  into  another;  there  he  may  be  in- 
dicted of  felony  in  any  of  the  counties,  because  that  the  original  act 
was  felony  whereof  the  common  law  taketh  knowledge.  And  yet, 
notwithstanding  I  committed  them  to  the  gaol  until  the  coming  of 
the  justices  of  the  assizes.  And  at  the  next  assizes  the  opinion  of 
Wray,  Chief  Justice,  and  Periam,  Justice  of  Assize,  was,  that  foras- 
much as  the  common  law  dcth  not  take  notice  of  the  original  of- 
fence, the  bringing  of  the  goods  stolen  upon  the  sea  into  a  county  did 
not  make  the  same  punishable  at  the  common  law.  And  thereupon 
they  were  committed  to  Sir  Robert  Southwell,  then  vice  admiral  of 
the  said  counties.  And  this  in  effect  agrees  with  Lacy's  Case,  which 
see  in  my  reports  cited  in  Bingham's  Case,  in  2  Coke,  93,  and  in  Con- 
stable's Case,  3  Coke,  107. 


STINSON  v.  PEOPLE. 

(Supreme  Court  of  Illinois,  1807.    43  111.  307.) 

Mr.  Tusticc  Breese  delivered  the  opinion  of  the  court.2 

Counsel  for  plaintiffs  in  error  make  this  point,  that   the  recorder's 

court  of  Cook  county  had  no  jurisdiction  of  the  offense;    the  original 

felonious  taking,  if  such,  having  occurred  in  the  state  of  Indiana. 
It  is  ;m  wered  to  this  by  the  Attorney  General,  and  correctly,  that 

the  principle  is  well  established,  where  the  original  taking  is  felonious, 
act  of  possession  continued  under  it  by  the  thief  is  a  felonious 

taking,   wherever  the  thief   may   be;    and   to  whatever  place   he  car- 

i  This  Btatemenl  <>f  Hie  <nse  is  reprinted  from  the  Case  of  the  Admiralty, 
7  (■ 
■■:  Pari  <>r  tiiis  case  i*  omitted, 


/  r  ■ 

CL.  to 

1 


Sec.  4)  THE    TRESPASS.  431 

ries  the  stolen  property  he  may  be  there  indicted,  convicted,  and  pun- 
ished for  the  felony. 

This  money  continued  to  be  the  property  of  the  prosecutor.  When 
taken  at  Lake  Station,  in  Indiana,  and  brought  into  Chicago,  it  was 
still  his  property,  and  not  only  that,  but  the  possession,  in  legal  con- 
templation, continued  in  him,  and  every  moment's  continuance  of 
the  trespass  was  as  much  a  wrong  as  the  first  taking,  and  may  as 
well  come  under  the  allegation  "took."  Therefore  it  follows  that 
these  plaintiffs  did  take,  wherever  they  had,  the  goods.  The  au- 
thorities on  this  point  are  conclusive.  1  Hawkins,  P.  C.  151,  §  52; 
People  v.  Burke,  11  Wend.  (N.  Y.)  129.  In  this  case  the  goods 
had  been  stolen  in  Canada,  and,  independent  of  the  statute  of  New 
York,  the  court  held  that  by  the  common  law  the  offender  could  be  pun- 
ished in  any  county  where  he  carries  the  stolen  goods,  as  he  is  guilty 
of  stealing  them  in  every  place  where  he  has  them. 

Perceiving  no  error  in  the  record  to  the  prejudice  of  the  prisoners, 
the  judgment  is  affirmed. 

Judgment  affirmed.8 


III.  Trespass  in  the  Appropriation  of  Lost  Goods. 
MERRY  v.  GREEN. 

(Court  of  Exchequer,  1841.    7  Mees.  &  W.  G23.) 

Trespass  for  an  assault  and  false  imprisonment.  The  defendant's 
plea  set  up  that  the  plaintiff  had  committed  larceny,  for  which  cause 
the  defendant  gave  the  plaintiff  into  the  custody  of  the  proper  peace 

i  2  Accord:  State  v.  Cummings,  33  Conn.  260,  89  Am.  Dec.  208  (I860);  State 
v.  Bennett,  14  Iowa,  479  (1SG3) ;  Ferrill  v.  Commonwealth,  1  Duv.  (Ky.)  153 
(1864) ;  Worthington  v.  State,  5S  Md.  403,  42  Am.  Rep.  338  (1882) ;  Common- 
wealth v.  White,  123  Mass.  430,  25  Am.  Rep.  116  (1877) ;  Watson  v.  State,  36 
Miss.  593  (1859) ;  State  v.  Bouton,  26  Nev.  34,  62  Pac.  595  (1900) ;  Hamilton 
v.  State,  11  Ohio,  435  (1842) ;  State  v.  Johnson,  2  Or.  115  (1864) ;  State  v. 
Hill,  19  S.  C.  435  (1883).  The  same  result  has  been  reached  by  statute  in 
some  states.  La  Vaul  v.  State,  40  Ala.  44  (1866);  McFarland  v.  State,  4 
Kan.  68  (1866);  People  v.  Williams,  24  Mich.  156,  9  Am.  Rep.  119  (1871); 
State  v.  Butler,  67  Mo.  59  (1877) ;  State  v.  Newman.  9  Nev.  48,  16  Am.  Rep. 
3  (1873) ;  Barclay  v.  U.  S.,  11  Old.  503,  69  Pac.  798  (1902) ;  State  v.  Morales. 
21  Tex.  298  (1858). 

Contra:  Lee  v.  State,  64  Ga.  203,  37  Am.  Rep.  67  (1879) ;  Beal  v.  State, 
15  Ind.  378  (1860) ;  Van  Buren  v.  State,  65  Neb.  223,  91  N.  W.  201  (1902);  State 
v.  Le  Blanch,  31  N.  J.  Law,  82  (1804) ;  Simmons  v.  Commonwealth,  5  Bin.  (Pa.) 
617  (1813). 

When  the  property  is  stolen  in  a  foreign  country  and  brought  by  the  thief 
into  a  state,  it  is  held  that  he  may  be  convicted  of  larceny  in  such  state, 
in  State  v.  Underwood,  49  Me.  181,  77  Am.  Dec.  254  (1S58) ;  State  v.  Bartlett, 
11  Vt.  650  (1839) ;  by  statute,  People  v.  Burke,  11  Wend.   (N.  Y.)  129  (1835). 

Contra:  Reg.  v.  Debruil,  11  Cox,  C.  C.  207  (1869);  Stanley  v.  State,  24  Ohio 
St.  166,  15  Am.  Rep.  604  (1873) ;  Commonwealth  v.  Uprichard,  3  Gray  (MassJ 
434,  63  Am.  Dec.  762  (1855). 


432  LARCENY.  (Ch.   13 

officer,  who  for  the  said  cause  lawfully  detained  the  plaintiff,  and  that 
this  was  the  trespass  alleged  against  the  plaintiff.1 

To  this  plea  the  plaintiff  replied  de  injuria,  whereupon  issue  was 
joined. 

At  the  trial  before  Tindal,  C.  J.,  at  the  last  Warwickshire  Assizes, 
the  following  appeared  to  be  the  facts  of  the  case :  Messrs.  Mammatt 
and  Tunnicliffe,  who  had  for  some  time  resided  together  at  Ashby- 
de-la-Zouch,  in  the  same  house,  and  keeping  the  same  table  and  serv- 
ants, in  October,  1839,  broke  up  their  establishment  and  sold  their 
furniture  (which  was  partly  joint  and  partly  separate  property)  by 
public  auction.  At  that  sale  the  plaintiff,  who  was  a  shoemaker,  also 
residing  in  Ashby,  became  the  purchaser,  at  the  sum  of  £1.  6s.,  of  an 
old  secretary  or  bureau,  the  separate  property  of  Mr.  Tunnicliffe. 
The  plaintiff  kept  the  bureau  in  his  house,  and  on  the  ISth  of  No- 
vember following  he  sent  for  a  boy  of  the  name  of  Garland,  a  car- 
penter's apprentice,  to  do  some  repairs  to  the  bureau.  Whilst  Gar- 
land was  so  engaged  he  remarked  to  the  plaintiff  that  he  thought  there 
were  some  secret  doors  in  the  bureau,  and,  touching  a  spring,  he  pulled 
out  a  drawer  which  contained  a  quantity  of  writings.  The  plaintiff 
then  discovered  another  drawer  in  which  was  a  purse  containing 
several  sovereigns  and  other  coins,  and  under  the  purse  a  quantity  of 
bank  notes.  Of  this  property  the  plaintiff  took  possession,  and,  telling 
Garland  that  the  notes  were  bad,  he  opened  the  purse,  and  gave  him 
one  of  the  sovereigns,  at  the  same  time  charging  him  to  keep  the 
matter  secret.  Garland  being  interrogated  by  his  parents  how  he 
came  by  the  possession  of  the  sovereign,  the  transaction  transpired; 
and  it  being  subsequently  discovered  that  the  plaintiff  had  appro- 
priated the  property  to  his  own  use,  falsely  alleging  that  he  had  never 
had  possession  of  a  great  portion  of  it,  the  defendants  (one  of  whom 
was  the  solicitor  of  Mr.  Tunnicliffe)  went  with  a  police  officer  to  the 
plaintiff's  house,  took  him  into  custody  and  conveyed  him  befpre  a 
magistrate  on  a  charge  of  felony.  The  plaintiff  was  ultimately  dis- 
charged, the  magistrate  doubting  whether  a  charge  of  felony  could  be 
supported.  At  the  trial  a  witness  of  the  name  of  Hannah  Jenkins  was 
called  on  behalf  of  the  plaintiff,  who  deposed  that  she  was  present  at 
the  auction,  and  remembered  the  piece  of  furniture  in  question  being 
put  for  sale  and  bought  by  the  plaintiff;  that  after  it  was  sold  an  ob- 
servation was  made  by  some  of  the  bystanders  to  the  effect  that  the 
plaintiff  might  have  bought  something  more  than  the  bureau,  as  one 
of  the  drawers  would  not  open,  upon  which  the  auctioneer  said,  "So 
much  the  better  for  the  buyer,"  adding,  "I  have  sold  it,  with  its  con- 
tents, and  it  is  bis."  This  statement  was  opposed  by  the  evidence  of 
luctioneer,  who  stated,  on  cross-examination  by  the  defendant's 
counsel,  thai  there  was  one  drawer  which  would  not  open,  and  that 
what  be  had  said  was:    "That  is  of  no  consequence.     I  have  sold  the 

i The  plea   is  abridged  and  part  of  the  case  is  omitted. 


Sec.  4)  THE  TRESPASS.  433 

secretary,  and  not  its  contents."     It  did  not  appear  that  any  person 
knew  that  the  bureau  contained  anything  whatever. 

The  learned  Chief  Justice,  in  summing  up,  told  the  jury  that,  as 
the  property  had  been  delivered  to  the  plaintiff  as  the  purchaser,  he 
thought  there  had  been  no  felonious  taking,  and  left  to  them  the  ques- 
tion of  damages  only,  reserving  leave  for  the  defendant  to  move  to 
enter  a  nonsuit.  The  jury  found  a  verdict  for  the  plaintiff  with  £50 
damages. 

Parke,  B.  My  Lord  Chief  Justice  thought  in  this  case  that,  even 
assuming  the  facts  of  which  evidence  was  given  by  the  defendant  to 
be  true,  the  taking  of  the  purse  and  abstracting  its  contents  was  not 
a  larceny;  and  that  is  the  question  which  he  reserved  for  the  opinion 
of  the  court,  giving  leave  to  move  to  enter  a  nonsuit.  After  hearing 
the  argument,  we  have  come  to  the  conclusion  that,  if  the  defendant's 
case  was  true,  there  was  sufficient  evidence  of  a  larceny  by  the  plain- 
tiff; but  we  cannot  direct  a  nonsuit,  because  a  fact  was  deposed  to  on 
tHe  part  of  the  plaintiff  which  ought  to  have  been  left  to  the  jury, 
and  which,  if  believed  by  them,  would  have  given  a  colorable  right 
to  him  to  the  contents  of  the  secretary,  as  well  as  to  the  secretary  it- 
self, viz.,  the  declaration  of  the  auctioneer  that  he  sold  all  that  the 
piece  of  furniture  contained,  with  the  article  itself,  and  then  the  ab- 
straction of  the  contents  could  not  have  been  felonious.  There  must, 
therefore,  be  a  new  trial,  and  not  a  nonsuit. 

But  if  we  assume,  as  the  defendant's  case  was,  that  the  plaintiff 
had  express  notice  that  he  was  not  to  have  any  title  to  the  contents  of 
the  secretary  if  there  happened  to  be  anything  in  it,  and,  indeed,  with- 
out such  express  notice,  if  he  had  no  ground  to  believe  that  he  had 
bought  the  contents,  we  are  all  of  opinion  that  there  was  evidence  to 
make  out  a  case  of  larceny. 

It  was  contended  that  there  was  a  delivery  of  the  secretary,  and  the 
money  in  it,  to  the  plaintiff  as  his  own  property,  which  gave  him  a 
lawful  possession,  and  that  his  subsequent  misappropriation  did  not 
constitute  a  felony.  But  it  seems  to  us  that  though  there  was  a  de- 
livery of  the  secretary,  and  a  lawful  property  in  it  thereby  vested  in 
the  plaintiff,  there  was  no  delivery  so  as  to  give  a  lawful  possession 
of  the  purse  and  money.  The  vendor  had  no  intention  to  deliver  it, 
nor  the  vendee  to  receive  it.  Both  were  ignorant  of  its  existence,  and, 
when  the  plaintiff  discovered  that  there  was  a  secret  drawer  contain- 
ing the  purse  and  money,  it  was  a  simple  case  of  finding,  and  the  law 
applicable  to  all  cases  of  finding  applies  to  this. 

The  old  rule,  that  "if  one  lose  his  goods  and  another  find  them, 
though  he  convert  them  animo  furandi  to  his  own  use,  it  is  no  lar- 
ceny," has  undergone  in  more  recent  times  some  limitations.  One  is 
that  if  the  finder  knows  who  the  owner  of  the  lost  chattel  is,  or  if, 
from  any  mark  upon  it,  or  the  circumstance  under  which  it  is  found, 
the  owner  could  be  reasonably  ascertained,  then  the  fraudulent  con- 
version, animo  furandi,  constitutes  a  larceny.  Russ.  Cr.  102.  Under 
Mik.Ck.L.— 28 


p 


134:  LARCENY.  (Ch.    13 

this  head  fall  the  cases  where  the  finder  of  a  pocketbook  with  bank 
notes  in  it,  with  a  name  on  them,  converts  them  animo  furandi ;  or 
a  hackney  coachman,  who  abstracts  the  contents  of  a  parcel  which 
has  been  left  in  his  coach  by  a  passenger  (Wynne's  Case,  Leach,  C.  C. 
413),  whom  he  could  easily  ascertain;  or  a  tailor,  who  finds  and  ap- 
plies to  his  own  use  a  pocketbook  in  a  coat  sent  to  him  to  repair  by  a 
customer,  whom  he  must  know  (Cartwright  v.  Green,  8  Ves.  405)  — 
all  these  have  been  held  to  be  cases  of  larceny;  and  the  present  is  an 
instance  of  the  same  kind,  and  not  distinguishable  from  them.  It  is 
stated  that  the  offense  cannot  be  larceny,  unless  the  taking  would  be 
a  trespass,  and  that  is  true;  but  if  the  finder,  from  the  circumstances 
of  the  case,  must  have  known  who  was  the  owner,  and,  instead  of 
keeping  the  chattel  for  him,  means  from  the  first  to  appropriate  it  to 
his  own  use,  he  does  not  acquire  it  by  a  rightful  title,  and  the  true 
owner  might  maintain  trespass ;  and  it  seems,  also,  from  Wynne's 
Case,  that  if,  under  the  like  circumstances,  he  acquire  possession  and 
~means  to  act  honestly,  but  afterwards  alter  his  mind,  and  open  the 
parcel  with  intent  to  embezzle  its  contents,  such  unlawful  act  would 
render  him  guilty  of  larceny. 

We  therefore  think  that  the  rule  must  be  absolute  for  a  new  trial, 
in  order  that  a  question  may  be  submitted  to  the  jury  whether  the 
plaintiff  had  reason  to  believe  that  he  bought  the  contents  of  the  bureau, 
if  any,  and  consequently  had  a  color  of  right  to  the  property.2 

Rule  absolute  for  a  new  trial. 


REGINA  v.  THURBORN. 
(Court  for  Crown  Cases  Reserved,  1849.    1  Den.  C.  C  387.) 

The  prisoner  was  tried  before  Parke,  B.,  at  the  Summer  Assizes 
for  Huntingdon,  1848,  for  stealing  a  bank  note. 

He  found  the  note,  which  had  been  accidentally  dropped  on  the 
high  road.  There  was  no  name  or  mark  on  it,  indicating  who  was 
the  owner ;  nor  were  there  any  circumstances  attending  the  finding 
which  would  enable  him  to  discover  to  whom  the  note  belonged  when 
he  picked  it  up ;  nor  had  he  any  reason  to  believe  that  the  owner 
knew  where  to  find  it  again.  The  prisoner  meant  to  appropriate  it 
to  his  own  use  when  he  picked  it  up.  The  day  after,  and  before  he 
had  <li  of  it,  he  was  informed  that  the  prosecutor  was  the  owner, 

and  bad  dropped  it  accidentally.  Me  linn  changed  it,  and  appropri- 
ated the  mbrie)  taken  Eo  bis  own  use.  The  jury  found  that  he  had 
reason  to  believe  and  did  believe  it  to  be  the  prosecutor's  property 
before  he  thu  ■■  d  the  note. 

The  learned  I'.aron  directed  a  verdict  of  guilty,  intimating  that  he 
should   reserve  the  case  for  further  consideration.     Upon  conferring 

i  Accord:     Boblnaon  v.  State,   n  Tex.  A.pp.   i<>::,  40  Am.  Rep.  790  (1882). 


Sec.  4)  THE   TRESPASS.  .435 

with  Maule,  J.,  the  learned  Baron  was  of  opinion  that  the  original 
taking  was  not  felonious,  and  that  in  the  subsequent  disposal  of  it 
there  was  no  taking,  and  he  therefore  declined  to  pass  sentence,  and 
ordered  the  prisoner  to  be  discharged,  on  entering  into  his  own  recog- 
nizance to  appear  when  called  upon. 

On  the  30th  of  April,  A.  D.  1849,  the  following  judgment  was  read 
by  Parke,  B. : 

A  case  was  reserved  by  Parke,  B.,  at  the  last  Huntingdon  Assizes. 
It  was  not  argued  by  counsel,  but  the  judges  who  attended  the  sit- 
ting of  the  court  after  Michaelmas  Term,  1848,  namely,  the  Lord 
Chief  Baron,  Patteson,  J.,  Rolfe,  B.,  Cresswell,  J.,  Wileiams,  J., 
Coetman,  J.,  and  Parke,  B.,  gave  it  much  consideration  on  account 
of  its  importance,  and  the  frequency  of  the  occurrence  of  cases  in 
some  degree  similar  in  the  administration  of  the  criminal  law,  and 
the  somewhat  obscure  state  of  the  authorities  upon  it.  [The  learned 
Baron  here  stated  the  case.]1 

In  the  present  case  there  is  no  doubt  that  the  bank  note  was  lost, 
the  owner  did  not  know  where  to  find  it,  the  prisoner  reasonably  be- 
lieved it  to  be  lost,  he  had  no  reason  to  know  to  whom  it  belonged, 
and  therefore,  though  he  took  it  with  the  intent,  not  of  taking  a  partial 
or  temporary,  but  the  entire,  dominion  over  it,  the  act  of  taking 
did  not,  in  our  opinion,  constitute  the  crime  of  larceny.  Whether  the 
subsequent  appropriation  of  it  to  his  own  use,  by  changing  it,  with 
the  knowledge  at  that  time  that  it  belonged  to  the  prosecutor,  does 
amount  to  that  crime,  will  be  afterwards  considered. 

It  appears,  however,  that  goods  which  do  fall  within  the  category 
of  lost  goods,  and  which  the  taker  justly  believes  to  have  been  lost, 
may  be  taken  and  converted,  so  as  to  constitute  the  crime  of  larceny, 
when  the  party  finding  may  be  presumed  to  know  the  owner  of  them, 
or  there  is  any  mark  upon  them,  presumably  known  by  him,  by  which 
the  owner  can  be  ascertained.  Whether  this  is  a  qualification  intro- 
duced in  modern  times,  or  which  always  existed,  we  need  not  deter- 
mine. It  may  have  proceeded  on  the  construction  of  the  reason  of 
the  old  rule,  "Quia  Dominus  rerum  non  apparet  ideo  cujus  sunt 
incertum  est,"  and  the  rule  is  held  not  to  apply  when  it  is  certain 
who  is  the  owner;  but  the  authorities  are  many,  and  we  believe  this 
qualification  has  been  generally  adopted  in  practice,  and  we  must 
therefore  consider  it  to  be  the  established  law.  There  are  many  re- 
ported cases  on  this  subject,  some  where  the  owner  of  goods  may  be 
presumed  to  be  known,  from  the  circumstances  under  which  they  are 
found.  Amongst  these  are  included  the  cases  of  articles  left  in  hack- 
ney coaches  by  passengers,  which  the  coachman  appropriates  to  his 
own  use,  or  a  pocketbook,  found  in  a  coat  sent  to  a  tailor  to  be  re- 
paired, and  abstracted  and  opened  by  him.  In  these  cases  the  ap- 
propriation has  been  held  to  be  larceny.     Perhaps  these  cases  might 

1  Part  of  the  opinion  is  omitted. 


436  LARCENY.  (Ch.   13 

be  classed  amongst  those  in  which  the  taker  is  not  justified  in  con- 
cluding that  the  goods  were  lost,  because  there  is  little  doubt  he 
must  have  believed  that  the  owner  would  know  where  to  find  them 
again,  and  he  had  no  pretense  to  consider  them  abandoned  or  derelict.2 
Some  cases  appear  to  have  been  decided  on  the  ground  of  bailment, 
determined  by  breaking  bulk,  which  would  constitute  a  trespass,  as 
Wynne's  Case,  Leach,  C.  C.  460 ;  but  it  seems  difficult  to  apply  that 
doctrine,  which  belongs  to  bailment,  where  a  special  property  is  ac- 
quired by  contract,  to  any  case  of  goods  merely  lost  and  found,  where 
a  special  property  is  acquired  by  finding. 

The  appropriation  of  goods  by  the  finder  has  also  been  held  to 
be  larceny,  where  the  owner  could  be  found  out  by  some  mark  on 
them,  as  in  the  case  of  lost  notes,  checks,  or  bills  with  the  owner's 
name  upon  them. 

This  subject  was  considered  in  the  case  of  Merry  v.  Green,  7 
M.  &  W.  623,  in  which  the  Court  of  Exchequer  acted  upon  the  au- 
thority of  these  decisions ;  and  in  the  argument  in  that  case  difficulties 
were  suggested,  whether  the  crime  of  larceny  could  be  committed  in  the 
case  of  a  marked  article,  a  check,  for  instance,  with  the  name  of  the 
owner  on  it,  where  a  person  originally  took  it  up,  intending  to  look  at  it, 
and  see  who  was  the  owner,  and  then,  as  soon  as  he  knew  whose  it 
was,  took  it,  animo  furandi,  as,  in  order  to  constitute  a  larceny,  the 
taking  must  be  a  trespass,  and  it  was  asked  when  in  such  a  case  the 
trespass  was  committed?  In  answer  to  that  inquiry  the  dictum  at- 
tributed to  me  in  the  report  was  used — that  in  such  a  case  the  tres- 
pass must  be  taken  to  have  been  committed,  not  when  he  took  it  up 
to  look  at  it  and  see  whose  it  was,  but  afterwards,  when  he  appropri- 
ated it  to  his  own  use,  animo  furandi. 

It  is  quite  a  mistake  to  suppose,  as  Mr.  Greaves  has  done  (volume 
2,  c.  14),  that  I  meant  to  lay  down  the  proposition  in  the  general 
terms  contained  in  the  extract  from  the  report  of  the  case  in  7  M.  & 
W.  623,  which,  taken  alone,  seems  to  be  applicable  to  every  case  of 
finding  unmarked,  as  well  as  marked,  property.  It  was  meant  to 
apply  to  the  latter  only. 

The  result  of  these  authorities  is  that  the  rule  of  law  on  this  sub- 
ject seems  to  be  that  if  a  man  find  goods  that  have  been  actually  lost, 
or  are  reasonably  supposed  by  him  to  have  been  lost,  and  appropriates 
tin  in,  with  the  intent  to  take  the  entire  dominion  over  them,  really  be- 
lieving, when  he  takes  them,  thai  the  owner  cannot  be  found,  it  is  not 
larceny;  but  if  he  takes  them  with  the  like  intent,  though  lost  or  rea- 
onably  supposed  to  he  lost,  but  reasonahly  believing  that  the  owner 
can  lie  found,  it  is  larceny. 

In  applying  this  rule,  as,  indeed,  in  the  application  of  all  fixed  rules, 

2  "in  the  case  where  a  gold  ornament  is  Found  at.  the  door  of  a  house, 
it  is  ridiculous  t<>  s;i.v  thai  ••my  person  picking  it  up  would  not  suppose  thai  it 
belonged  to  the  owner  of  the  house."     Etolfe,  i;.,  in  Reg.  v.  Peters,  1  Car. 

ft  K.   247. 


Sec.  4)  THE  TRESPASS.  437 

questions  of  some  nicety  may  arise;  but  it  will  generally  be  ascer- 
tained whether  the  person  accused  had  reasonable  belief  that  the 
owner  could  be  found,  by  evidence  of  his  previous  acquaintance  with 
the  ownership  of  the  particular  chattel,  the  place  where  it  is  found, 
or  the  nature  of  the  marks  upon  it.  In  some  cases  it  would  be  ap- 
parent;   in  others,  appear  only  after  examination. 

It  would  probably  be  presumed  that  the  taker  would  examine  the 
chattel  as  an  honest  man  ought  to  do  at  the  time  of  taking  it ;  and, 
if  he  did  not  restore  it  to  the  owner,  the  jury  might  conclude  that  he 
took  it,  when  he  took  complete  possession  of  it,  animo  furandi.  The 
mere  taking  it  up  to  look  at  it  would  not  be  a  taking  possession  of  the 
chattel. 

To  apply  these  rules  to  the  present  case :  The  first  taking  did  not 
amount  to  larceny,  because  the  note  was  really  lost,  and  there  was 
no  mark  on  it,  or  other  circumstance  to  indicate  then  who  was  the 
owner,  or  that  he  might  be  found,  nor  any  evidence  to  rebut  the  pre- 
sumption that  would  arise,  from  the  finding  of  the  note  as  proved, 
that  he  believed  the  owner  could  not  be  found,  and  therefore  the 
original  taking  was  not  felonious;  and  if  the  prisoner  had  changed 
the  note,  or  otherwise  disposed  of  it,  before  notice  of  the  title  of  the 
real  owner,  he  clearly  would  not  have  been  punishable;  but  after  the 
prisoner  was  in  possession  of  the  note  the  owner  became  known  to 
him,  and  he  then  appropriated  it,  animo  furandi,  and  the  point  to  be 
decided  is  whether  that  was  a  felony. 

Upon  this  question  we  have  felt  considerable  doubt. 

If  he  had  taken  the  chattel  innocently,  and  afterwards  appropriated 
it  without  knowledge  of  the  ownership,  it  would  not  have  been  lar- 
ceny; nor  would  it,  we  think,  if  he  had  done  so  knowing  who  was 
the  owner,  for  he  had  the  lawful  possession  in  both  cases,  and  the 
conversion  would  not' have  been  a  trespass  in  either.  But  here  the 
original  taking  was  not  innocent  in  one  sense,  and  the  question  is, 
does  that  make  a  difference?  We  think  not.  It  was  dispunishable, 
as  we  have  already  decided,  and,  though  the  possession  was  accom- 
panied by  a  dishonest  intent,  it  was  still  a  lawful  possession,  and 
good  against  all  but  the  real  owner,  and  the  subsequent  conversion 
was  not,  therefore,  a  trespass  in  this  case  more  than  the  others,  and 
consequently  no  larceny. 

We  therefore  think  that  the  conviction  was  wrong. 


438  LARCENY.  (Ch.  13 

BROOKS  v.  STATE. 
(Supreme  Court  of  Ohio,  1878.    35  Ohio  St.  46.) 

The  plaintiff  in  error,  George  Brooks,  was  convicted  of  larceny 
in  stealing  $200  in  bank  bills,  the  property  of  Charles  B.  Newton. 
The  evidence  was  that  Brooks,  a  scavenger,  while  engaged  in  clean- 
ing the  streets,  on  November  20th  picked  up  from  the  mud  and  water 
in  the  gutter  a  roll  of  money  consisting  of  bank  bills  of  the  denomina- 
tions of  $5,  $10,  and  $20,  and  amounting  in  the  aggregate  to  $200. 
It  had  lain  there  since  the  24th  of  October,  on  which  day  it  had  been 
lost  by  the  prosecutor.  Notice  of  the  loss  had  been  published  in  sev- 
eral newspapers ;  but  the  evidence  did  not  show  that  defendant  saw 
any  of  said  notices,  or  that  at  the  time  he  found  the  money  he  knew 
of  Newton's  loss.  There  were  no  marks  on  the  money  to  indicate 
the  owner.  At  the  time  of  the  finding  defendant  was  working  with 
several  other  laborers.  He  testified  that  on  picking  up  the  roll  he 
immediately  put  it  in  his  pocket,  without  informing  his  companions 
that  he  had  found  it,  and  that  he  did  not  want  them  to  know  of  it. 
Within  a  half  hour  after  finding  the  money,  he  quit  work.  He  spent 
part  of  the  money  the  same  day,  and  intrusted  part  of  it  to  a  Mrs. 
Lease,  saying  that  he  had  received  it  from  an  uncle,  and  at  another 
time,  on  being  asked  by  her  about  it,  said,  "What  if  I  found  it?" 
Evidence  was  also  given  that  the  defendant  shortly  afterward  left 
the  town,  and  that  before  leaving  he  attempted  to  secrete  himself.1 

White,  J.  We  find  no  ground  in  the  record  for  reversing  the 
judgment. 

The  first  instruction  asked  was  properly  refused.  It  was  not  neces- 
sary to  the  conviction  of  the  accused  that  he  should,  at  the  time  of  tak- 
ing possession  of  the  property,  have  known,  or  have  had  reason  to 
believe  he  knew,  the  particular  person  who  owned  it,  or  have  had 
the  means  of  identifying  him  instanter.  The  charge  asked  was  liable 
to  this  construction,  and  there  was  no  error  in  its  refusal. 

The  second  instruction  asked  was  substantially  given  in  the  gen- 
eral charge. 

Larceny  may  be  committed  of  property  that  is  casually  lost,  as 
well  as  of  that  which  is  not.  The  title  to  the  property,  and  its  con- 
structive possession,  still  remains  in  the  owner;  and  (he  finder,  if  he 
takes  |  n  of  it  for  his  own  use,  and  not  for  the  benefit  of  the 

owner,  would  be  guilty  of  trespass,  unless  the  circumstances  were  such 
o  show  that  it  had  been  abandoned  by  the  Owner. 

The  question  is,  under  what  circumstances  does  such  property  be- 
come  the  subject  of  larceny  by  the  finder? 

[n  Baker  v.  State,  29  I  )hio  St.  L84,  S3  Am.  Rep.  731,  Hie  rule  stated 
bj    Baron  Parke,  in  Thurborn's  Case,  1  Den.  C.  C.  387,  was  adopted. 

i  Tlic    KlMtcincnt    is   :  1 1 » i  i  - 1 :  -  •  <  1    ;iii(]    pari    <>!'    the   opinion    of   OUey,   J.,    reciting 

the  Pacts,  is  omitted. 


Sec.  4)  the  trespass.  439 

It  was  there  laid  down  that  "when  a  person  finds  goods  that  have 
actually  been  lost,  and  takes  possession  with  intent  to  appropriate 
tfTem  to  his  own  use,  really  believing  at  the  time,  or  having  good 
ground  to  believe,  that  the  owner  can  be  found,  it  isjarceny." 

It  must  not  be  understood,  from  the  rule  as  thus~stated,  that  the 
finder  is  bound  to  use  diligence  or  to  take  pains  in  making  search 
for  the  owner.  His  belief,  or  grounds  of  belief,  in  regard  to  finding 
the  owner,  is  not  to  be  determined  by  the  degree  of  diligence  that  he 
might  be  able  to  use  to  accomplish  that  purpose,  but  by  the  circum- 
stances apparent  to  him  at  the  time  of  finding  the  property.  If  the 
property  has  not  been  abandoned  by  the  owner,  it  is  the  subject  of 
larceny  by  the  finder,  when,  at  the  time  he  finds  it,  he  has  reasonable 
ground  to  believe,  from  the  nature  of  the  property,  or  the  circum- 
stances under  which  it  is  found,  that  if  he  does  not  conceal,  but  deals 
honestly  with  it,  the  owner  will  appear  or  be  ascertained.  But,  be- 
fore the  finder  can  be  guilty  of  larceny,  the  intent  to  steal  the  prop- 
erty must  have  existed  at  the  time  he  took  it  into  his  possession. 

There  are  cases  in  conflict  with  the  foregoing  view ;  but  we  believe 
it  correct  in  principle,  and  well  supported  by  authority.  Glyde's  Case, 
1  L.  R.  C.  C.  139;  Moore's  Case,  Leigh  &  Cave's  C.  C.  1 ;  Regina 
v.  Knight,  12  Cox,  102;  Commonwealth  v.  Titus,  116  Mass.  43,  17 
Am.  Rep.  138;  Ransom  v.  State,  22  Conn.  153;  2  Russ.  Crimes 
(9th  Am.  Ed.  [4th  Eng.  Ed.])  179,  180,  and  note  there  found  to  Thur- 
born's  Case. 

The  case  was  fairly  submitted  to  the  jury,  and  from  an  examination 
of  the  evidence  we  find  no  ground  for  interfering  with  the  action 
of  the  court  below  in  refusing  a  new  trial. 

Judgment  affirmed.2 

OKEYrjr    f-dtrnot  think  the  plaintiff  was  properly  convicted. 

No  doubt  the  plaintiff  was  morally  bound  to  take  steps  to  find  the 
owner.  An  honest  man  would  not  thus  appropriate  money  before 
he  had  made  the  finding  public  and  endeavored  to  find  the  owner. 

2  Accord:  State  v.  Clifford,  14  Nev.  72,  33  Am.  Rep.  526  (1879).  Cf.  Reg. 
v.  Knight,  12  Cox,  C.  C.  102  (1871). 

"If  the  owner  has  placed  no  mark  about  the  property,  and  none  exists, 
by  which  the  finder  can  discover  him,  the  case  must  still  be  considered,  as 
it  long  has  been,  one  of  mere  trover  and  conversion — not  of  larceny.  The 
general  remark  in  People  v.  McGarren,  17  Wend.  (N.  Y.)  4G0,  that  a  finder 
having  the  means  of  discovery  is  an  exception,  must  be  taken  with  the  limi- 
tation indicated  by  the  authorities  referred  to.  Every  finder  may  be  said 
to  have  the  means  of  discovering  the  owner  by  the  exercise  of  an  honest  dili- 
gence ;  and  if,  when  valuable  property  is  lost,  such  means  be  made  a  test,  the 
doctrine  of  People  v.  Anderson  is  indeed  gone.  Scarcely  any  finder  could 
fail  in  his  search;  and.  this  being  generally  obvious  to  a  jury,  they  would 
hardly  ever  fail  to  convict  for  that  reason.  The  rule  would  thus,  in  practice, 
be  brought  down  to  a  very  narrow  exception."  Cowen,  J.,  in  People  v. 
Cogdell,  1  Hill  (N.  Y.)  94  (1841). 

Accord:  Parke,  B.,  arguendo,  in  Reg.  v.  Dixon,  7  Cox,  C.  C.  35  (1855).  See, 
also,  Lane  v.  People,  10  111.  305  (184S) ;  Reg.  v.  Christopher,  8  Cox,  C.  C.  91 
(1858). 


440  LARCENY.  (Ch.   13 

But  in  violating  the  moral  obligation  I  do  not  think  the  plaintiff  in- 
incurred  criminal  liability. 

Baker's  Case,  29  Ohio  St.  1S4,  23  Am.  Rep.  731,  was  correctly 
decided.  It  is  stated  in  the  opinion,  not  only  that  when  he  took  the 
goods  he  intended  to  appropriate  them  to  his  own  use,  but  that  he  had 
reasonable  ground  for  believing  that  Alden  was  the  owner.  A  pas- 
sage from  Regina  v.  Thurborn,  1  Den.  C.  C.  387,  is  cited  in  that  case 
as  containing  a  correct  statement  of  the  law.  But  a  careful  examina- 
tion of  Regina  v.  Thurborn  will  show  that  the  court  which  rendered 
the  decision  would  not  have  sustained  this  conviction,  and  that  case  has 
been  repeatedly  followed  in  England  and  this  country.  R.  v.  Preston, 
2  Den.  C.  C.  351;  R.  v.  West,  6  Cox,  415;  R.  v.  Dixon,  7  Cox,  35; 
R.  v.  Christopher,  5  Jur.  (N.  S.)  24;  R.  v.  Glyde,  11  Cox,  103; 
R.  v.  Knight,  12  Cox,  102 ;  Tanner  v.  Commonwealth,  14  Grat.  (Va.) 
635;  People  v.  Cogdell,  1  Hill  (N.  Y.)  94,  37  Am.  Dec.  297;  Lane 
v.  People,  5  Gilman  (111.)  305;  State  v.  Conway,  18  Mo.  321;  2 
Leach,  Cr.  Cas.  31 ;   Bailey  v.  State,  52  Ind.  4G2,  21  Am.  Rep.  182. 

The  obligation,  stated  in  the  syllabus,  that  the  finder  must  deal 
"honestly"  with  the  money,  is  too  indefinite,  and  the  opinion  contains 
no  satisfactory  explanation  of  it.  This  leaves  both  law  and  fact  to 
the  jury,  without  any  rule  to  guide  them.  What  one  jury  might 
think  was  honest  dealing  another  jury  might  think  was  the  reverse. 
The  adverb  "properly"  or  "rightfully"  would  have  been  as  certain. 

Gilmore,  C.  J.,  concurs  in  the  dissenting  opinion. 


LAWRENCE  v.  STATE. 

(Supreme  Court  of  Tenuessee,  1839.     1   Humph.  228,  34  Am.  Dec.  644.) 

Reese,  J.,  delivered  the  opinion  of  the  court.1 

This  is  an  indictment  for  grand  larceny.  The  plaintiff  in  error  was 
a  barber,  and  had  a  shop  in  the  town  of  Lebanon.  Muirhead,  the 
prosecutor,  went  to  the  shop  of  Lawrence  late  in  the  evening  for 
the  purpose  of  having  his  hair  trimmed.  This  operation  having  been 
performed,  the  prosecutor  took  out  his  pocketbook  in  order  to  pay 
the  plaintiff  in  error,  and  gave  him  a  $1  bill;  but  the  latter,  not  having 
the  change,  left  the  shop  for  the  purpose  of  procuring  it,  and  prose- 
cutor remained.  When  the  prosecutor  took  out  his  pocketbook,  which 
contained  $480,  he  laid  it  upon  a  table  in  the  shop.  On  the  return 
of  the  plaintiff,  prosecutor  met  him  without  the  door,  received  his 
change,  and  departed.  On  retiring  to  bed  that  night  at  9  or  10  o'clock 
he  missed  his  pocketbook,  and  remembered  that  he  had  left  it  on  the 
table  in  the  shop.  He  then  went  to  the  shop,  where  he  found  the 
plaintiff,  who  denied  all  knowledge  of  the  pocketbook.     The  foregoing 

>  Part  of  tills  case  Is  omitted. 


■ 


'  > 


I 


fU.  « 


Jo*.  &V" 


r 


Sec.  4)  THE    TRESPASS.  441 

is  a  sufficient  statement  of  the  evidence  with  reference  to  the  ques- 
tion discussed  before  us. 

The  defendant's  counsel  contends  that  the  prosecutor,  having  gone 
3  way  from  the  shop  without  remembering  that  he  had  left  his  pocket- 
book  behind  him,  the  same,  during  the  time  his  mind  remained  in 
that  state,  may  be  said  to  have  been  lost,  and  that  it  has  been  deter- 
mined in  the  case  of  Porter  v.  State,  Mart.  &  Y.  (Tenn.)  226,  that 
the  fraudulent  appropriation  of  lost  goods,  even  where  the  finder 
knows  the  owner,  is  not  larceny.  We  answer  that  the  pocketbook, 
under  the  circumstances  proved,  was  not  lost,  nor  could  the  defendant 
be  called  a  finder.  The  pocketbook  was  left,  not  lost.  The  loss  of 
goods,  in  legal  and  common  intendment,  depends  upon  something  more 
than  the  knowledge  or  ignorance,  the  memory  or  want  of  memory, 
of  the  owner,  as  to  their  locality  at  any  given  moment.  If  I  place 
my  watch  or  pocketbook  under  my  pillow  in  a  bedchamber,  or  upon 
a  table  or  bureau,  I  may  leave  them  behind  me,  indeed;  but,  if  that 
be  all,  I  cannot  be  said  with  propriety  to  have  lost  them.  To  lose 
is  not  to  place  or  put  anything  carefully  and  voluntarily  in  the  place 
you  intend  and  then  forget  it.  It  is  casually  and  involuntarily  to  part 
from  the  possession ;  and  the  thing  is  then  usually  found  in  a  place 
or  under  circumstances  to  prove  to  the  finder  that  the  owner's  will 
was  not  employed  in  placing  it  there.  To  place  a  pocketbook,  there- 
fore, upon  a  table,  and  to  omit  or  forget  to  take  it  away,  is  not  to 
lose  it  in  the  sense  in  which  the  authorities  referred  to  speak  of  lost 
property;  and  we  are  of  opinion,  therefore,  that  there  was  no  error 
in  the  charge  of  the  court  in  reference  to  the  facts  in  this  case,  and 
we  affirm  the  judgment.2 


IV.  Trespass  in  the  Appropriation  op  Goods  Delivered  by  the 

Owner. 

(A)  When  Delivery   Gives  Possession. 

REX  v.  MEERES. 

(Old  Bailey,  1688.    1  Show.  50.) 

Indictment  at  the  Old  Bailey,  16th  May  last,  against  Mary  Meeres 
and  Susan  Vicars,  for  the  stealing  a  rug  and  other  goods  of  Robert 
Geery.  Upon  not  guilty  pleaded,  a  special  verdict,  that  Susan  Vicars 
and  her  husband,  lately  deceased,  took  a  lodging  room  in  the  house 

2  Accord:  Rex  v.  Wynne,  1  Leach  (4th  Ed.)  413  (1786) ;  People  v.  Swan. 
1  Parker,  Cr.  R.  (N.  Y.)  9  (1839) ;  State  v.  McCann,  19  Mo.  249  (1S53) ;  Reg. 
v.  West,  Dears.  402  (1854);  Pritchett  v.  State,  2  Sneed  (Tenn.)  285,  62  Am. 
Dec.  468  (1854);  Pyland  v.  State,  4  Sneed  (Tenn.)  357  (1857);  Reg.  v. 
Moore,  8  Cox  O.  C.  416  (1861);  State  v.  Cummings,  33  Conn.  260,  89  Am. 
Dec.  208  (1866);    State  v.  Farrow,  61  N.  C.  161,  93  Am.  Dec.  585  (1867). 


442  LARCENY.  (Ch.   13 

of  Richard  Geery,  furnished  with  the  goods  mentioned  in  the  in- 
dictment from  week  to  week,  at  two  shillings  per  week;  that  the 
key  of  the  door,  was  delivered  to  the  said  Susan,  which  she  kept; 
that  Susan  paid  one  week's  payment  for  the  room  and  lodging,  and 
continued  therein  about  four  weeks;  that  the  said  Susan  and  Mary, 
on  the  day  in  the  indictment,  and  before  the  expiration  of  the  fourth 
week,  took  and  carried  away  the  goods,  et  si.,  etc.1 

Chief  Justice  Holt  thought  it  no  felony.  Pollexsen  thought  it 
was,  and  that  a  lodger  had  the  bare  use  as  a  guest  hath,  and  that 
fieri  fac.  against  the  landlord  would  reach  these  goods  as  is  the  con- 
stant practice;  that  no  indebitatus  lay  for  the  rent  of  the  room,  which 
shows  the  money  was  for  the  room  and  not  the  goods.  Atkins,  that 
it  was  no  felony,  and  that  a  lodger  had  more  than  a  bare  use,  and 
nowadays  lodgings  furnished,  and  perhaps  the  greater  part  of  the 
house,  are  taken  by  the  year,  and  there  is  no  difference  in  the  time. 
Nevil,  no  felony.  Turton,  no  felony.  RokESBY,  thought  it  no  felony, 
because  no  intent  found  to  steal,  either  in  the  taking  the  lodgings  or 
in  carrying  away  the  goods.  Ventris,  of  the  same.  But  all  thought 
it  a  point  deserving  very  good  consideration. 


REX  v.  LEIGH. 

(Court  for  Crown  Cases  Reserved,  1800.    1  Leach,  C.  C.  411,  note.) 

Elizabeth  Leigh  was  indicted  at  Wells  Assizes  in  the  summer  of 
1800  for  stealing  various  articles,  the  property  of  Abraham  Dyer. 
It  appeared  that  the  prosecutor's  house,  consisting  of  a  shop  contain- 
ing muslin  and  other  articles  mentioned  in  the  indictment,  was  on 
fire,  and  that  his  neighbors  had  in  general  assisted  at  the  time  in  re- 
moving his  goods  and  stock  for  their  security.  The  prisoner  probably 
had  removed  all  the  articles  which  she  was  charged  with  having 
stolen,  when  the  prosecutor's  other  neighbors  were  thus  employed ; 
and  it  appeared  that  she  removed  some  of  the  muslin  in  the  presence 
of  the  prosecutor  and  under  his  observation,  though  not  by  his  de- 
sire. Upon  the  prosecutor  applying  to  her  the  next  morning,  she  de- 
nied that  she  had  any  of  the  things  belonging  to  him,  whereupon  he 
obtained  a  search  warrant  and  found  his  property  in  her  house ;  most 
of  the  articles  artfully  concealed  in  various  ways.  But  it  was  sug- 
gested that  she  originally  took  the  articles  with  an  honest  purpose,  as 
mi  neighbors  had  done,  and  that  she  would  not  otherwise  have  taken 
ome  of  them  in  the  presence  and  under  the  view  of  the  prosecutor, 
and  thai  therefore  the  case  did  not  amount  to  felony.  The  jury,  from 
b  ervations  they  received  from  the  court,  found  her  guilty,  but 
aid  that,  in  their  opinion,  when  she  first  took  the  goods  from  the 
shop  she  had  no  evil  intention,  but  that  such  evil  intention  came  upon 

i  Argument  of  counsel  is  omitted. 


Sec.  4)  THE   TRESPASS.  443 

her  afterwards.  And  upon  a  reference  to  the  judges  in  Michaelmas 
Term,  1800,  all  (absent,  Lawrence,  J.)  held  the  conviction  wrong, 
for  that,  if  the  original  taking  were  not  with  intention  to  steal,  the 
subsequent  conversion  was  no  felony,  but  a  breach  of  trust. 


REGINA  v.  EVANS. 
(Abingdon  Assizes,  1842.     1  Car.  &  M.  632.) 

Larceny.  The  prisoner  was  indicted  for  stealing  a  waistcoat,  the 
property  of  Joseph  Johnson. 

It  was  proved  by  the  prosecutor,  that  he,  on  the  31st  of  May,  1842, 
gave  the  waistcoat  into  the  hands  of  the  prisoner  to  take  to  Eliza 
Rose  to  have  it  washed ;  and  it  was  proved  by  Eliza  Rose  that  the 
prisoner  brought  the  waistcoat  to  her  to  be  washed,  at  the  same  time 
telling  her  it  was  his  own ;  and  she  further  stated  that  she  washed 
the  waistcoat  and  delivered  it  to  the  prisoner  on  the  5th  of  June ; 
and  it  was  also  proved  that  the  prisoner,  when  he  was  apprehended, 
told  the  constable  where  to  find  it. 

Tyrwhitt,  for  the  prosecution,  referred  to  3  Inst.  107. 

Erskine,  J.  I  think  that  the  prisoner's  getting  back  the  waistcoat 
from  Eliza  Rose  was  no  larceny,  because  he  delivered  it  to  her  as 
his  own.  He  must,  therefore,  be  taken  to  have  converted  it  tQ  his  own 
use  before  he  delivered  it  to  her.  There  is,  however,  one  question 
on  which  the  case  must  go  to  the  jury. 

The  prisoner  was  called  on  for  his  defense. 

Erskine,  J.,  left  it  to  the  jury  to  say  whether  the  prisoner,  at  the 
time  when  he  received  the  waistcoat  from  the  prosecutor,  had  an  in- 
tention of  stealing  it,  for  that  if,  at  that  time,  he  had  not  an  intention 
of  stealing  it,  he  was  entitled  to  be  acquitted. 

Verdict — Not  guilty.  The  foreman  of  the  jury  adding:  "We  find 
that  the  prisoner  had  no  intention  to  steal  the  waistcoat  at  the  time 
when  he  received  it  from  the  prosecutor."1 


CARRIER'S  CASE. 

(Star  Chamber  and  Exchequer  Chamber.  1473.     Y.  B.  13  Edw.  TV.  9.  pi.  "»- 

In  the  Star  Chamber  before  the  King's  Council  such  matter  was 
shown  and  debated;  where  one  has  bargained  with  another  to  carry 
certain  bales  with,  etc.,  and  other  things  to  Southampton,   he   took 

i  Accord:  Reg.  v.  Fletcher,  4  Car.  &  P.  545  (1831) ;  Reg.  v.  Savage.  5  Car. 
&  P.  143  (1831). 

2  This  case  is  printed  from  the  translation  in  Pollock  &  Wright's  Possession 
In  the  Common  Law. 


444  LARCENY.  (Ch.   13 

them  and  carried  them  to  another  place  and  broke  up  (debrusa)  the 
bales  and  took  the  goods  contained  therein  feloniously,  and  converted 
them  to  his  proper  use  and  disposed  of  them  suspiciously;  if  that 
may  be  called  felony  or  not,  that  was  the  case. 

Brian,  C.  J.  I  think  not,  for  where  he  has  the  possession  from  the 
party  by  a  bailing  and  delivery  lawfully,  it  cannot  after  be  called 
felony  nor  trespass,  for  no  felony  can  be  but  with  violence  and  vi 
et  armis,  and  what  he  himself  has  he  cannot  take  with  vi  et  armis 
nor  against  the  peace:  therefore  it  cannot  be  felony  nor  trespass,  for 
he  may  not  have  any  other  action  of  these  goods  but  action  of  detinue. 

Hussey,  the  King's  Attorney.  Felony  is  to  claim  feloniously  the 
property  without  cause  to  the  intent  to  defraud  him  in  whom  the  prop- 
erty is,  animo  furandi,  and  here  notwithstanding  the  bailment  ut  supra 
the  property  remained  in  him  who  bailed  them,  then  this  property 
can  be  feloniously  claimed  by  him  to  whom  they  were  bailed,  as  well 
as  by  a  stranger,  therefore  it  may  be  felony  well  enough. 

The  Chancellor.  Felony  is  according  to  the  intent,  and  his  in- 
tent may  be  felonious  as  well  here  as  if  he  had  not  the  possession. 

Molineux  ad  idem.  A  matter  lawfully  done  may  be  called  felony 
or  trespass  according  to  the  intent ;  sc.  if  he  who  did  the  act  do  not 
pursue  the  cause  for  which  he  took  the  goods,  as  if  a  man  distrain 
for  damage  feasant  or  rent  in  arrear  and  then  he  sell  the  goods  and 
kill  the  beasts,  this  is  tort  now  where  at  the  beginning  it  was  good. 
So  if  a  man  come  into  a  tavern  to  drink  it  is  lawful,  but  if  he  carry 
away  the  piece  or  do  other  trespass  then  all  is  bad.  So  although  the 
taking  was  lawful  in  the  carrier  ut  supra,  etc.,  yet  when  he  took  the 
goods  to  another  place  ut  supra  he  did  not  pursue  his  cause,  and  so 
by  his  act  after  it  may  be  called  felony  or  trespass  according  to  the 
intent. 

Brian,  C.  J.  Where  a  man  docs  an  act  out  of  his  own  head,  it  may 
be  a  lawful  act  in  one  case  and  in  another  not,  according  to  his  act 
afterwards,  as  in  the  cases  which  you  have  put,  for  there  his  intent 
shall  be  judged  according  to  his  act;  but  where  I  have  goods  by 
your  bailment,  this  taking  cannot  be  made  bad  after  by  anything. 

Vavisour.  Sir,  our  case  is  better  than  a  bailment,  for  here  the 
things  were  not  delivered  to  him,  but  a  bargain  that  he  should  carry 
the  goods  to  S.  ut  supra:  and  then  if  he  took  them  to  carry  them 
/thither,  he  took  them  warrantably ;  and  the  case  put  now  upon  the 
matter  shows,  that  is,  his  demeanor  after  shows,  that  he  took  them 
as  felon,  and  to  another  intent  than  to  carry  them  ut  supra,  in  which 
case  he  took  them  without  warrant  or  cause,  for  that  he  did  not  pur- 
sue the  cause,  and  so  it  is  felony. 

Choke,  J.  1  think  that  where  a  man  has  goods  in  his  possession 
by  reason  of  a  bailment  he  cannot  take  them  feloniously,  being  in 
possession  ;  but  Still  it  seems  here  that  it  is  felony,  for  here  the  things 
which  were  within  the  hales  were  not  bailed  to  him,  only  the  bales 
us  an  entire  thing  were  bailed  ut  supra  to  carry;    in  which  case  if  he 


Sec.  4)  THE   TRESPASS.  445 

had  given  the  bales  or  sold  them,  etc.,  it  is  not  felony,  but  when  he 
broke  them  and  took  out  of  them  what  was  within  he  did  that  with- 
out warrant,  as  if  one  bailed  a  tun  of  wine  to  carry,  if  the  bailee  sell 
the  tun  it  is  not  felony  nor  trespass,  but  if  he  took  some  out  it  is  fel- 
ony2 ;  and  here  the  twenty  pounds  were  not  bailed  to  him,  and  per- 
adventure  he  knew  not  of  them  at  the  time  of  the  bailment.  So  is  it 
if  I  bail  the  key  of  my  chamber  to  one  to  guard  my  chamber,  and  he 
take  my  goods  within  this  chamber,  it  is  felony  for  they  were  not 
bailed  to  him. 

[It  was  then  moved  that  the  case  ought  to  be  determined  at  com- 
mon law ;  but  the  Chancellor  seems  to  have  thought  otherwise,  for 
the  complainant  was  a  merchant  stranger,  whose  case  ought  to  be 
judged  by  the  law  of  nature  in  chancery,  and  without  the  delay  of 
trial  by  jury.  However  the  matter  was  afterwards  argued  before  the 
judges  in  the  Exchequer  Chamber,  and  there.] 

It  was  holden  by  all  but  Nedham,  J.,  that  where  goods  are  bailed 
to  a  man  he  cannot  take  them  feloniously;  but  Nedham  held  the  con- 
trary, for  he  might  take  them  feloniously  as  well  as  another;  and  he 
said  it  had  been  held  that  a  man  can  take  his  own  goods  feloniously, 
as  if  I  bail  goods  to  a  man  to  keep,  and  I  come  privily  intending  to 
recover  damages  against  him  in  detinue  and  I  take  the  goods  privily, 
it  is  felony.  And  it  was  holden  that  where  a  man  has  possession  and 
that  determines,  he  can  then  be  felon  of  the  things,  as  if  I  bail  goods 
to  one  to  carry  to  my  house,  and  he  bring  them  to  my  house  and  then 
take  them  thereout  it  is  felony;  for  his  possession  is  determined  when 
they  were  in  my  house ;  but  if  a  taverner  serve  a  man  with  a  piece, 
and  he  take  it  away,  it  is  felony  for  he  had  not  possession  of  this 
piece;  for  it  was  put  on  the  table  but  to  serve  him  to  drink:  and 
so  is  it  of  my  butler  or  cook  in  my  house ;  they  are  but  ministers  to 
serve  me,  and  if  they  carry  it  away  it  is  felony,  for  they  had  not  pos- 
session, but  the  possession  was  all  the  while  in  me ;  but  otherwise 
peradventure  if  it  were  bailed  to  the  servants  so  that  they  are  in  pos- 
session of  it. 

Laicon,  J.  I  think  there  is  a  diversity  between  bailment  of  goods 
and  a  bargain  to  take  and  carry,  for  by  the  bailment  he  has  delivery 
of  possession,  but  by  the  bargain  he  has  no  possession  till  he  take 
them,  and  this  taking  is  lawful  if  he  takes  them  to  carry,  but  if  he 
take  them  to  another  intent  than  to  carry  them,  so  that  he  do  not  pur- 
sue his  cause,  I  think  that  shall  be  called  felony  well  enough. 

Brian,  C.  J.  I  think  that  it  is  all  one,  a  bargain  to  carry  them, 
and  a  bailment,  for  in  both  cases  he  has  authority  of  the  same  per- 
son in  whom  the  property  was,  so  that  it  cannot  be  called   felony: 

2  "But  I  marvel  at  the  case  put,  13  Edw.  IV,  9:  That  if  a  carrier  have  a 
tun  of  wine  delivered  to  him  to  carry  to  such  a  place,  and  he  never  carry  It, 
but  sell  it,  all  this  is  no  felony ,  but  if  he  draw  part  of  it  out  above  the 
value  of  twelvepence,  this  is  felony.  I  do  not  see  why  the  disposing  of  the 
whole  should  not  be  felony  also."     Kel.  83. 


446  LARCENY.  (Ch.   13 

M.  2  E.  Ill,  in  an  indictment  "felonice  abduxit  unum  equum"  is  bad, 
but  it  should  be  cepit.  So  in  eyre  at  Nott.,  8  E.  Ill ;  and  in  this  case 
the  taking  cannot  be  feloniously,  for  that  he  had  the  lawful  pos- 
session, so  then  the  breaking  the  bales  is  not  felony.  Vide  -i  E.  II, 
in  trespass,  for  that  plaintiff  had  bought  a  tun  of  wine  of  defendant, 
and  while  it  was  in  defendant's  guard  defendant  came  with  force 
and  arms  and  broke  the  tun  and  carried  away  parcel  of  the  wine  and 
filled  up  the  tun  with  water. 

And  for  that  it  appeared  he  had  possession  before,  the  writ  being 
vi  et  armis  was  challenged,  and  yet  it  was  held  well  and  he  pleaded 
not  guilty,  and  then  the  Justices  reported  to  the  Chancellor  in  Coun- 
cil that  the  opinion  of  the  most  of  them  was  that  it  was  felony. 


LANGLEY  v.  BRADSHAW. 

(King's  Bench,  1632.     Rol.  Abr.  73,  pi.  16.) 

If  a  man  say  to  a  miller  who  keeps  a  mill,  thou  hast  stolen  three 
pecks  of  meal,  action  lies,  for  although  the  corn  was  delivered  to 
him  to  grind,  yet  if  he  steal  the  meal  it  is  felony,  being  taken  from 
the  residue.1 


REX  v.  MADOX. 
(Court  for  Crown  Cases  Reserved,  1805.     Russ.  &  R.  92.) 

This  was  an  indictment  for  a  capital  offense  on  St.  24  Geo.  II,  c.  45, 
tried  before  Mr.  Baron  Graham  at  the  Summer  Assizes  at  Winchester, 
in  the  year  1805. 

The  first  count  was  for  stealing  at  West  Cowes  6  wooden  casks  and 
1,000  pounds  weight  of  butter,  value  i20,  the  goods  of  Richard  Brad- 
ley and  Thomas  Clayton,  being  in  a  certain  vessel  called  a  sloop  in 
the  port  of  Cowes,  the  said  port  being  a  port  of  entry  and  discharge, 
against  the  statute.  The  second  count  was  for  grand  larceny.  The 
third  count  was  like  the  first,  except  as  to  the  property  in  the  goods, 
which  was  laid  in  one  Richard  Lashmore;  and  the  fourth  count  was 
for  grand  larceny  of  the  goods  of  the  said  Richard  Lashmore. 

The  butter  stolen  was  part  of  a  cargo  of  280  firkins  or  casks,  shipped 
at  \Vat<  rford,  in  Ireland,  on  board  a^oop,  the_Bciij.uniu,  of  which 
the  prisoner  was  master  and  owner/Tiound  to~Shoivhani  and  New- 
haven,  in  Suss. ■;.. ;  7.">o  61  the  casks  being  consigned  to  Bradley  and 
Clayton  at  Shoreham,  and  50  of  them  to  Lashmore  at  Brighthelmstone. 

It  appeared  thai  the  ordinary  length  of  this  voyage,  with  fair  winds, 
was  a  week  or  nine  days,  but  in  winter  sometimes  a  month  or  five 

i  Accord:    Commonwealth  v.  jnnies,  l  rick.  (Mass.)  375  (1S23). 


Sec.  4)  THE  TRESPASS.  447 

weeks.  In  the  present  instance  the  voyage  had  been  of  much  longer 
duration. 

The  vessel  first  touched  at  Sheepshead,  in  Ireland,  in  distress.  The 
prisoner  went  on  shore  at  Beerhaven,  where  he  signed  a  protest,  bear- 
ing date  on  the  20th  December,  1801.  From  thence  they  proceeded  to 
Lundy  Island,  and  to  Tenby,  in  Wales,  where  they  arrived  in  Feb- 
ruary, 1805,  and  at  which  place  the  prisoner  went  on  shore  and  stayed 
four  or  five  weeks;  the  winds  being  foul.  From  thence  they  pro- 
ceeded to  Scilly,  and  then  to  Cowes,  where  they  arrived  on  the  last 
day  of  March,  or  the  1st  of  April,  1805.  Cowes  was  in  their  course, 
but  they  had  previously  met  with  very  foul  weather,  and  had  been 
driven  to  the  westward  of  Madeira,  during  which  time  the  vessel  had 
been  often  in  great  distress;  but  no  part  of  the  butter  had  at  any  time 
been  thrown  overboard.  Upon  the  arrival  at  Cowes  the  prisoner  went 
on  shore,  and  shortly  afterwards  applied  to  one  Lallow,  a  sailmaker, 
for  a  suit  of  sails.  Lallow  went  aboard  the  vessel,  and  took  measure 
for  the  sails,  and  after  his  return  to  Cowes  the  prisoner  called  upon 
him  again  and  bespoke  a  hammock,  and  then  stated  that  he  had  13 
casks  of  butter  on  board  the  vessel  belonging  to  himself,  and  request- 
ed Lallow  to  send  for  them  and  deposit  them  in  his  sail  loft  until  the 
prisoner  returned  from  Newhaven.  At  the  same  time  he  gave  Lallow 
a  note,  or  order,  for  the  mate  of  the  vessel,  by  which  the  mate  was 
required  to  deliver  13  casks  of  butter  to  the  bearer.  Lallow  despatch- 
ed some  of  his  men  with  the  order  and  a  boat  to  the  vessel,  where  they 
arrived  in  the  night,  and  after  having  delivered  the  order  to  the  mate 
received  from  him  7  casks  of  butter  in  the  first  instance,  being  as 
much  as  the  boat  would  carry,  and  upon  their  return  to  the  vessel, 
during  the  night,  received  from  the  mate  the  other  6  casks.  The 
order  did  not  require  the  mate  to  deliver  any  particular  casks ;  and  it 
appeared  by  the  evidence  of  the  mate  that  he  took  them  as  they  came 
to  hand.  The  casks  had  been  originally  stowed  in  the  hold  and  up- 
on the  half  decks  as  they  came  on  board,  and  those  delivered  to  Lal- 
low's  men  were  taken  from  the  half  decks;  the  others  being  battened 
down.  The  7  casks  first  delivered  by  the  mate  were  taken  to 
Lallow's  premises  and  deposited  there.  The  other  6  casks  were  seized 
by  the  custom  house  officers.  The  prisoner  was  at  Cowes,  and  was 
informed  by  Lallow  of  the  seizure,  at  which  he  expressed  anger,  speak- 
ing of  the  seizure  as  a  robbery,  and  of  the  casks  so  seized  as  his  own 
property  and  venture.  He  also  spoke  of  going  to  claim  his  property, 
and  afterwards  told  Lallow  that  he  would  give  him  an  order- to  claim 
it,  as  he  must  himself  go  away.  The  prisoner  afterwards  went  to  the 
vessel,  and  passsed  the  rest  of  the  night  on  board.  The  remainder  of 
the  cargo  was  delivered  at  Shoreham  and  Newhaven. 

The  protest  made  by  the  prisoner,  and  bearing  date  at  Beerhaven, 
the  20th  of  December,  1804,  purported,  amongst  other  things,  that 
the  prisoner  had  been  obliged  to  throw  overboard  several  casks  of 
butter.     And  it  appeared  that  he  had  held  the  same  language  to  the 


448  LARCENY.  (Ch.   13 

consignees  as  his  excuse  for  delivering  short  of  their  respective  con- 
signments. 

Upon  this  case  the  counsel  for  the  prisoner  raised  two  objections: 
First,  that  no  larceny  had  been  committed  by  the  prisoner;  and,  sec- 
ondly, that  the  offense  was  not  capital — the  larceny,  if  any,  being  of 
goods  in  his  own  vessel. 

Upon  the  first  objection,  it  seemed  to  be  admitted  that  if  the  mate, 
by  the  order  of  the  prisoner,  had  broken  bulk  by  taking  the  casks 
from  those  which  were  battened  down,  it  might  have  been  larceny 
in  the  prisoner;  and  the  learned  judge  thought  that  as  the  casks  were 
taken  from  the  half  deck,  where  they  were  originally  stowed,  there 
was  no  material  difference.  It  was  then  contended  that  the  prisoner 
went  into  Cowes  without  any  necessity  and  out  of  the  course  of  his 
voyage ;  and  the  case  was  compared  to  those  wherein  it  had  been 
held  that  if  goods  are  delivered  to  a  carrier  to  carry  to  a  certain  place, 
and  he  carries  them  elsewhere,  and  embezzles  them,  it  is  no  felony. 
But  the  learned  judge  thought  that  the  severance  of  a  part  from  the 
rest,  and  the  formed  design  of  doing  so,  took  the  case  out  of  those 
authorities,  if  they  could  be  considered  as  applying  to  the  present  case. 

Upon  the  second  objection,  those  cases  were  cited  wherein  it  had 
been  held  that  St.  12  Anne,  c.  7,  against  larceny  in  a  dwelling  house, 
to  the  value  of  40  shillings,  does  not  extend  to  a  stealing  by  a  man  in 
his  own  house;  but  the  learned  judge  thought  that,  though  this  might 
be  the  law  as  to  a  person  stealing  the  goods  of  another  under  the  pro- 
tection of  his  own  house,  yet  the  case  of  a  man  stealing  the  goods  of 
another  laden  on  board  his  own  vessel  was  different,  as  in  such  case 
the  vessel,  for  the  voyage,  might  be  considered  as  the  vessel  of  the 
freighter,  and  that,  if  the  owner  should  take  the  command  of  the  ves- 
sel, the  stealing  the  goods  committed  to  his  care  would  be  an  aggrava- 
tion of  his  offense.  And  he  further  observed  that  the  words  and  oc- 
casion of  the  two  statutes  would  admit  of  a  distinction. 

The  whole  case  was  therefore  left  to  the  jury,  who  found  the  pris- 
oner guilty ;  but  the  sentence  was  respited,  in  order  that  the  opinion 
of  the  judges  might  be  taken. 

In  Michaelmas  Term,  1805,  the  case  was  considered  by  the  judges, 
who  were  of  opinion  that  it  was  not  larceny,  and  that,  if  it  were  larceny, 
it  would  not  have  amounted  to  a  capital  offense  within  St.  24  Geo. 
II,  c.  45.1 

i  See,  .iisn.  Rex  v.  Pratley,  5  Car.  &  P.  533  (1833);  Reg.  v.  Cornish,  1 
Dears.  426  (1854). 


Sec.  4)  THE   TRESPASS.  440 

REX  v.  BRAZIER. 
(Court  for  Crown  Cases  Reserved,  1817.    Russ.  &  R.  337.) 

The  prisoner  was  tried  before  Mr.  Justice  Holroyd  at  the  Summer 
Assizes  for  the  town  of  Nottingham,  in  the  year  1817,  on  an  indict- 
ment for  stealing  15  bushels  of  wheat,  of  the  goods  and  chattels  of 
Thomas  Neale. 

Thomas  Neale,  a  farmer,  sent  40  bags,  containing  20  quarters,  of 
his  wheat  to  the  prisoner,  who  was  a  wharfinger  and  warehouseman 
in  the  town  of  Nottingham,  and  who  received  the  same  into  his  ware- 
house there  for  safe  custody  for  the  said  Thomas  Neale.  The  wheat 
was  to  lie  there  until  sold  by  the  prosecutor.  The  prisoner  had  no 
authority  to  sell  it.  It  was  proved  that  Neale  did  not  give  any  au- 
thority to  the  prisoner  to  make  any  alteration  in  the  wheat,  or  to  open 
the  bags  in  order  to  show  them,  or  for  any  other  purpose. 

While  the  wheat  thus  remained  in  the  prisoner's  warehouse  for  safe 
custody,  and  was  the  property  of  Neale,  the  prisoner's  servant,  by  the 
prisoner's  order,  took  eight  of  the  bags,  containing  four  quarters,  of 
the  above  wheat  from  the  rest,  and,  shooting  the  wheat  out  of  the  bags 
upon  the  warehouse  floor,  mixed  it  with  four  bags  of  different  wheat 
of  an  inferior  quality  and  value.  When  so  mixed,  the  whole  was,  by  the 
prisoner's  order,  put  into  twelve  other  bags,  and  afterwards  sent  away 
and  disposed  of  by  him  for  his  own  benefit.  Afterward,  by  the  pris- 
oner's orders,  the  above  four  quarters  of  Neale's  wheat  were  replaced 
with  an  equal  quantity  of  the  prisoner's  wheat,  of  very  inferior  quality 
and  value,  by  mixing  the  same  with  two  quarters  of  the  residue  of 
Neale's  wheat,  and  replacing  the  same  when  so  mixed  in  the  bags  from 
whence  the  four  quarters  of  Neale's  wheat  had  been  removed,  as  before 
mentioned.  Another  part  of  Neale's  wheat  was  in  like  manner  fraud- 
ulently removed,  mixed,  and  replaced  by  the  prisoner's  orders;  and 
sixteen  of  the  above  bags,  containing  eight  quarters  of  the  wheat  so 
mixed,  as  before  stated,  were  afterwards  delivered  by  the  prisoner  to 
the  vendee  of  Thomas  Neale,  as  being  part  of  the  wheat  deposited  by 
Neale  in  the  prisoner's  warehouse. 

It  did  not  appear  that  there  was  any  severing  of  part  of  the  wheat 
in  any  one  bag  from  the  residue  of  the  wheat  in  the  same  bag,  with 
intent  to  steal  or  embezzle  that  part  only  that  was  so  severed,  and  not 
the  residue  in  the  same  bag  from  which  it  was  so  severed. 

The  jury,  being  of  opinion  that  the  facts  above  stated  were  proved, 
found  the  prisoner  guilty  of  larceny ;  but  the  learned  judge  respited' 
the  judgment,  and  reserved  the  point  for  the  consideration  of  the 
judges. 

In  Michaelmas  Term,  1817,  eleven  of  the  judges  met  and  considered 
this  case.  They  were  unanimously  of  opinion  that  the  conviction  was 
right,  that  the  taking  the  whole  of  the  wheat  out  of  any  one  bag  was 
Mik.Cb.L.— 29 


450  LARCENY.  (Ch.  13 

no  less  a  larceny  than  if  the  prisoner  had  severed  a  part  from  the  residue 
of  the  wheat  in  the  same  bag,  and  had  taken  only  that  part,  leaving 
the  remainder  of  the  wheat  in  the  bas:.1 


REX  v.  SEMPLE. 

(Old  Bailey,  178G.    1  Leach  [4th  Ed.]  420.) 

At  the  ensuing  session  the  prisoner,  J.  G.  Semple,  was  again  indicted 
for  the  same  offense,2  before  Adair,  Recorder;  present,  Mr.  Justice 
Gould. 

The  following  facts  appeared  in  evidence:  The  prosecutor,  Mr. 
Lycett,  was  a  coachmaker,  who  let  out  carriages  to  hire.  The  prisoner 
was  a  gentleman  who  lodged  in  the  neighborhood  under  the  name  of 
Maj.  Harrold,  and  had  frequently  hired  chaises  from  the  prosecutor 
as  the  occasion  required,  and  for  which  he  had  always  paid  with  great 
punctuality.  On  the  1st  of  September,  1785,  the  prisoner  hired  a  post 
chaise  of  the  prosecutor,  saying  that  he  should  want  it  for  three 
weeks  or  a  month,  as  he  was  going  a  tour  round  the  North.  It  was 
agreed  that  the  prisoner  should  pay  at  the  rate  of  five  shillings  a  day 
during  the  time  that  he  kept  the  chaise,  and  a  price  of  fifty  guineas 
was  talked  about  in  case  he  should  determine  to  purchase  the  chaise 
on  his  return  to  London;  but  no  positive  agreement  took  place  be- 
tween them  on  the  subject  of  the  purchase.  In  a  few  days  afterwards 
the  prisoner  fetched  the  chaise  from  Mr.  Lycett's  with  his  own  horses ; 
and  it  was  in  evidence  that  he  was  driven  in  it  from  London  to  the 
Crown  and  Cushion  at  Uxbridge,  where  he  ordered  a  pair  of  horses, 
and  went  from  thence  to  the  Duke  of  Portland's,  and  returned.  He 
took  fresh  horses  at  the  Crown  and  Cushion,  but  where  he  went  with 
the  chaise  afterwards  did  not  appear.  The  fact  was  he  never  re- 
turned it  to  Mr.  Lycett,  nor  could  any  tidings  be  obtained  of  him  till 
twelve  months  afterwards,  when  he  was  accidentally  apprehended  by 

i  "I  think  that  this  was  a  case  of  bailment,  although  the  prosecutor's 
Bervants  were  on  board,  because  they  were  there  under  the  prisoner's  con- 
trol. Thai  being  so.  If  the  prisoner  had  not  taken  the  staves  out  of  the  boat, 
the  mere  nondelivery  of  them  would  not  have  amounted  to  larceny;  but  the 
prisoner  separating  one  of  the  articles  from  the  rest  and  taking  it  to  a  place 
dlfferenl  from  thai  of  Its  destination  was.  if  he  did  it  with  Lntenl  to  appropri- 
ate it  to  iiis  own  use,  equivalent  to  breaking  hulk,  and  therefore  would  be, 
Buffldenl  i"  constitute  a  larceny."  Patteson,  J.,  in  Rex  v.  Eowell,  7  car.  & 
P.  825  (1886). 

also,  Reg.  v.  Poyser,  2  Den.  0.  0.  233  (1851).  in  Nichols  v.  People, 
it  n.  v.  in  (1858),  it  was  held  (Denio,  J.,  dissenting)  thai  the  separation  by 
a  carrier,  without  the  assenl  of  the  owner,  of  Bundry  bars  of  iron,  part  of  a 
larger  number  thai  had  been  delivered  to  him  for  transportation,  was  a  break- 
ing of  bulk,  making  a  subsequent  conversion  of  Bucb  separated  liars  larceny. 

Accord:  Commonwealth  v.  Brown,  4  Mass.  G80  (1808).  But  see  Res  v. 
Relliy,  .I'hb,  53  (1826), 

»  Larceny. 


Sec.  4)  THE   TRESPASS.  451 

the  activity  of  Mr.  Feltham,  in  Fleet  street,  upon  a  suspicion  of  hav- 
ing, under  false  pretenses,  defrauded  him  of  a  quantity  of  ladies'  hats. 

Garrow,  for  the  prisoner,  submitted  to  the  court  that,  admitting  the 
whole  of  the  evidence  to  be  true,  the  offense  did  not  amount  to  felony, 
and  he  endeavored  to  distinguish  the  case  from  that  of  Pear's  Case,  1 
Leach,  212,  and  Aickle's  Case,  1  Leach,  294,  inasmuch  as  in  those 
cases  the  parties  had  never  obtained  the  legal  possession  of  the  prop- 
erty delivered  to  them,  but  that  in  the  present  case  the  prisoner  had 
obtained  the  chaise  upon  a  contract,  which  it  was  not  proved  that  he 
had  broken;  for  the  chaise  was  not  hired  for  any  definite  length  of 
time,  or  to  go  to  any  certain  place,  and  the  mere  understanding  that 
it  was  for  three  weeks  or  a  month,  for  the  purpose  of  making  a  tour 
round  the  North,  made  no  part  of  the  contract.  He  had  hired  it  for 
such  a  length  of  time  as  he  should  please  to  keep  it,  at  a  certain  stipu- 
lated price  for  each  day ;  and,  it  being  delivered  to  him  upon  those 
terms,  he  had  the  entire  possession  of  it  in  himself,  and  was  answer- 
able in  damages  for  its  detention,  or  for  any  injury  which  might  hap- 
pen to  it  during  his  absence.  But,  supposing  the  contract  should  be 
thought  not  to  extend  beyond  the  three  weeks  or  a  month ;  it  is  clear 
that  during  that  time  he  had  at  least  the  legal  possession,  and  then  no 
intention  to  convert  it  wrongfully  to  his  own  use,  arising  afterward, 
whether  from  necessity  or  dishonesty,  will  make  the  withholding  it 
felony,  for  the  animus  furandi  must  exist  at  the  time  the  property  is 
obtained.  In  all  the  leading  cases  upon  this  subject  of  constructive 
felony,  there  has  always  been  some  evidence  of  a  tortious  conversion ; 
but  in  this  case  it  has  not  been  proved  that  the  prisoner  has  disposed 
of  the  chaise.  It  may  be  at  this  very  moment  in  his  possession,  for 
anything  that  appears  to  the  contrary,  and  a  conversion  cannot  be  in- 
ferred from  his  having  neglected  to  return  it. 

The  Court.  The  court  is  bound  by  the  determination  of  former 
cases.  It  is  now  settled  that  the  question  of  intention  is  for  the  con- 
sideration of  the  jury;  and  in  the  present  case,  if  they  should  be  of 
opinion  that  the  original  hiring  of  the  chaise  was  felonious,  it  will  fall 
precisely  within  the  principle  of  Pear's  Case  and  the  other  decisions 
which  the  judges  have  made  upon  the  subject  of  constructive  felony. 
If  there  was  a  bona  fide  hiring  of  the  chaise,  to  pay  so  much  for  every 
day  for  the  use  of  it,  and  a  real  intention  of  returning  it,  a  subsequent 
conversion  of  it  cannot  be  felony,  whether  the  time  for  which  it  was 
hired  be  limited  or  indefinite.;  for  by  the  bona  fide  contract,  and  sub- 
sequent delivery,  the  prisoner  would  have  acquired  the  lawful  pos- 
session of  it,  and  therefore,  although  he  afterwards  abused  that  trust 
and  that  possession,  felony  could  not  ensue,  because  the  original  tak- 
ing was  lawful.  But,  on  the  other  hand,  if  the  hiring  was  only  a  pre- 
tense made  use  of  to  get  the  chaise  out  of  the  possession  of  the  owner, 
without  any  intention  to  restore  it  or  to  pay  for  it,  in  that  case  the  law 
supposes  the  possession  still  to  reside  with  the  owner,  though  the 
property  itself  is  gone  out  of  his  hands,  and  then  the  subsequent  con- 


452  LARCENY.  (Ch.    13 

version  will  be  felony.  The  case  of  The  King  v.  Pear  was  very  sol- 
emnly debated  at  Lord  Chief  Justice  De  Grey's  house ;  and  the  unani- 
mous opinion  of  the  judges  was  at  last  that  the  direction  given  to  the 
jury  by  the  learned  judge  who  tried  the  prisoner  was  right.  The  most 
important  part  of  the  argument  turned  upon  the  consideration  wheth- 
er the  delivery  of  the  horse  to  Pear  had  in  law  divested  the  owner  ei- 
ther of  his  property  or  the  possession  of  it.  The  question  left  with 
the  jury  was  whether  the  contract  was  meant  fairly,  or  whether  it  was 
a  mere  color  and  pretense.  The  jury  found  that  it  was  a  mere  color 
and  pretense,  and  upon  that  finding  the  judges  determined  the  taking 
to  be  felony,  because  it  is  an  established  principle  of  law  that  the  pos- 
session of  property  cannot  be  obtained  through  the  medium  of  a  fraud. 
But  it  has  been  attempted  to  distinguish  the  present  case  from  The 
King  v.  Pear :  First,  that  the  hiring  in  this  case  was  indefinite,  but  that 
in  The  King  v.  Pear  it  was  certain  and  limited.  The  time  cannot  be 
material  in  questions  of  this  nature.  Pear  hired  the  horse  in  the  morn- 
ing, under  the  pretense  of  going  to  Sutton,  in  Surrey,  and  to  return 
in  the  evening;  but.  as  the  hiring  was  found  to  be  felonious,  the  law 
of  the  case  must  have  been  the  same,  although  it  had  appeared  that 
the  hiring  was  for  two  days,  a  week,  a  month,  or  any  other  given  time 
— nay,  if  the  time  had  been  left  entirely  unlimited.  The  circumstances 
of  the  time  being  long  or  unsettled  may,  indeed,  render  the  proof  of 
guilt  more  difficult,  but  cannot  alter  the  law  of  the  case.  Secondly, 
it  is  said  that  this  case  differs  from  The  King  v.  Pear,  because  it  was 
proved  that  Pear  had  sold  the  horse,  and  therefore  had  converted  it 
to  his  own  use,  but  that  in  the  present  case  no  proof  has  been  given 
that  the  prisoner  has  sold  or  otherwise  converted  the  chaise.  Proof 
of  actual  conversion  certainly  is  not  necessary,  but  the  jury  must  judge 
of  it  from  the  circumstances  of  the  case.  If  the  prisoner,  at  any  time 
before  the  prosecution  was  commenced,  had  offered  to  restore  the 
chaise  to  the  owner,  or  to  pay  him  for  it,  such  conduct  would  have 
been  evidence  of  an  honest  intention  when  he  originally  hired  it,  and 
would  have  reprobated  the  idea  of  a  fraudulent  design.  But  he  hires 
the  chaise  for  a  month,  and  a  year  passes,  and  neither  the  chaise  nor 
the  man  are  heard  of  until  he  is  taken.  There  is  no  evidence  even  at 
this  moment  that  the  chaise  is  forthcoming,  nor  does  any  one  pretend 
to  know  where  it  is.  This,  therefore,  raises  a  presumption  against  the 
ner,  which  it  is  incumbent  on  him  to  repel;  and.  if  lie  cannot, 
it  will  be  for  the  consideration  of  the  jury,  under  all  the  circum- 
stances  of  the  case,  whether  tiny  think  he  has  feloniously  disposed 
of  it,  or  otherwise  converted  it  to  his  own  use.  In  their  determi- 
nation of  this  point  they  must  recur  to  the  time  of  the  original 
hiring,  and  to  the  nature  and  meaning  of  the  contract  then  made 
en  tin-  parties.  If  they  think-  the  redelivery  of  the  chaise  form- 
ed any  part  of  the  contract,  the  nondelivery  of  it  must  necessarily 
form  a  pari  of  their  consideration.  They  will  then  consider  wheth- 
er the  nondelivery  is  sufficient  evidence  to  satisfy  their  consciences 


Sec.  4)  THE   TRESPASS.  453 

that  he  has  converted  it  to  his  own  use.  These  two  considerations 
will  naturally  lead  to  a  third,  viz.,  whether  the  property  thus  con- 
verted was  originally  obtained  with  a  felonious  design,  which  will 
carry  them  back  to  the  instant  of  time  that  he  obtained  possession 
of  it;  and,  if  they  should  find  the  original  hiring  was  felonious, 
the  most  ingenious  subtlety  cannot  distinguish  this  case  from  that 
of  The  King  v.  Pear.  There  is  a  case  in  Kelynge  of  a  person  who 
took  a  lodging  in  a  house,  and  afterwards  at  night,  while  the  peo- 
ple were  at  prayers,  robbed  them.  The  jury  found  that  the  inten- 
tion of  taking  the  lodging  was  to  commit  the  felony,  and  the  judges 
determined  that  this  was  burglary.  There  was  also  a  case  deter- 
mined very  lately  by  the  judges.  A  man  ordered  a  pair  of  candle- 
sticks from  a  silversmith  to  be  sent  to  his  lodgings.  They  were 
sent  to  his  lodgings,  with  a  bill  of  parcels;  but  he  contrived  to  send 
the  servant  back,  and  to  keep  the  goods,  and  this  was  held  to  be 
felony,  although  they  were  delivered  with  the  bill  of  parcels,  under 
an  expectation  of  being  paid  the  money,  for  the  jury  found  that  it 
was  a  pretense  to  purchase,  with  intention  to  steal. 

The  question  of  original  intention  was  left  with  the  jury,  and 
they  found  the  prisoner  guilty.  A  motion  was  made  in  arrest  of 
judgment,  but  it  was  overruled,  and  he  received  sentence  of  trans- 
portation for  seven  years.2 


REGINA  v.  HEHIR. 

(Queen's  Bench  Division,   1S95.     [1895]  2  Ir.   R.   709.) 

Denis  Hehir  was  indicted  for  the  larceny  of  a  £10  note,  of  the 
goods  and  chattels  of  one  John  Leech.  It  appears  from  the  evidence 
that  this  £10  note  was  handed  by  Leech  to  Hehir  in  part  payment 
of  a  sum  of  £2.  8s.  9d.  due  by  the  former  to  the  latter,  and  that,  at 
the  time  when  it  was  so  handed,  both  Leech  and  Hehir  believed  it  to 
be  a  £1  note.  It  further  appears  that,  after  the  lapse  of  a  substantial 
period  of  time,  Hehir  became  aware  that  the  note  was  one  for  £10, 
whereupon,  in  the  words  of  the  case,  "he  fraudulently  and  without 
color  of  right  intended  to  convert  the  said  note  to  his  own  use,  and 
to  permanently  deprive  the  said  John  Leech  thereof,  and  that  to  ef- 
fectuate such  intention  the  said  prisoner  shortly  afterwards  changed 
the  said  noie  and  disposed  of  the  proceeds  thereof." 

The  case  was  left  by  the  Lord  Chief  Baron  to  the  jury  (who  found 
the  prisoner  guilty),  in  order  to  obtain  an  authoritative  decision  up- 

2  Accord:  Reg.  v.  Janson,  4  Cox,  C.  C.  82  (1S49) ;  Reg.  v.  Brown,  Dears. 
616  (1856) ;    Reg.  v.  Thompson.  Leigh  &  C.  227  (1S62). 

"It  is  quite  immaterial  whether  a  man  obtains  possession  of  property, 
with  intent  to  convert  it  to  his  own  use,  by  means  of  a  trick,  or  whether 
he  gets  it  with  the  like  intent,  by  placing  himself  in  a  convenient  position, 
where  it  is  probable  that  he  will  be  intrusted  with  it."  Pollock,  G.  B.,  in 
Reg.  v.  Thompson,  Leigh  &  C.  225  (1S02). 


454:  LARCENY.  (Ch.   13 

on  a  question  upon  which  the  Court  for  Crown  Cases  Reserved  in 
England  was  equally  divided  in  The  Queen  v.  Ashwell,  16  Q.  B.  D. 
190.  That  question  he  reserved  for  this  court  in  the  following  words : 
"Whether  I  ought  to  have  directed  a  verdict  of  acquittal  by  reason 
of  the  prisoner  not  having  had  the  animus  furandi  when  Leech  handed 
him  the  £10  note?"1 

Gibson,  J.2  What  we  have  to  deal  with  is  common  mistake  of 
identity  of  such  a  character  as  excludes  the  mutual  assent  necessary 
to  the  existence  of  contract.  That  the  subject-matter  is  money  can 
make  no  difference  in  this  respect.  No  doubt  if  the  taker  cashed 
the  note,  and  gave  the  owner  back  the  change,  his  conduct  in  so  doing 
would  displace  animus  furandi.  But  on  the  question  of  consent  and 
no  consent,  on  which  the  determination  of  trespass  depends,  I  cannot 
discern  any  substantial  difference  between  a  bank  note  and  any 
other  chattel.  A  bank  note  indorsed  by  the  Duke  of  Wellington 
might  have  a  fancy  value,  and  a  person  getting  it  by  mistake  could 
hardly  insist  on  holding  it,  if  he  chose  to  pay  the  difference  in  face 
value. 

For  the  purpose  of  the  inquiry  I  shall  assume  it  as  unquestionable 
law  that,  as  a  common-law  offense,  larceny  involves  an  unlawful 
violation  of  possession  and  that  it  cannot  be  committed  where  pos- 
session has  been  acquired  in  its  origin  lawfully.  I  shall  confine  myself 
to  two  points:  The  first,  the  effect  of  mistake — considered  from  the 
receiver's  side — on  the  acquisition  of  possession ;  the  second,  the  effect 
of  mistake — considered  from  the  owner's  side — on  the  question  of  the 
lawfulness  of  such  acquisition.  The  solution  of  both  these  questions 
ultimately  must  depend  on  the  effect  and  meaning  of  consent  of  the 
taker  on  the  one  hand  and  of  the  owner  on  the  other,  but  it  is  con- 
venient to  discuss  them  separately. 

First,  as  to  the  acquisition  of  possession.  What  is  to  be  examined 
is  legal  possession,  as  distinct  on  the  one  hand  from  physical  or  ap- 
parent possession,  sometimes  called  custody  or  detention,  and  on  the 
other  from  right  to  possess,  or  ownership.  A  man  is  holding  an 
umbrella.  He  may  have  it  as  owner,  thief,  or  servant.  So  far  as 
external  appearances  go,  there  is  no  difference,  yet  as  owner  or  as 
thief  he  would  be  in  legal  possession.  As  owner,  he  would  be  in 
lawful  possession;  as  servant,  he  would  not  be  in  possession  at  all. 
Why  is  this?  Because  possession  denotes,  in  addition  to  a  material, 
al  and  mental  relation.  In  Roman  law,  possession  meant  the 
occupation  of  anything  with  the  intention  of  exercising  rights  of  own- 
ership in  respect  of  it.  "Apiscimur  possessionem  animo  et  corpore, 
neque  per  se  animo  aul  per  se  corpore."  Dig.  41,  2,  3,  1.  The  defini- 
tion in  Sir  J.  Stephen's  Digest  also  introduces  the  element  of  inten- 
tion.    I   have  no  doubt  that  in   English   law   physical  occupation   is 

i  Tart  of  thlfl  case  Is  omitted.     The  facta  are  printed  from  the  opinion  of 
Madden,  J. 
2  Part  of  the  opinion  is  omit  ted. 


Sec.  4)  THE  TRESPASS.  455 

not  identical  with  possession.  If  it  were,  a  servant  would  be  pos- 
sessed of  his  master's  chattel;  whereas,  we  know  that  the  posses- 
sion is  the  master's.  The  analysis  of  the  legal  conception  of  posses- 
sion, though  to  a  lawyer  familiar,  wears  an  appearance  of  subtlety; 
but  in  real  property  cases  I  have  never  found  any  difficulty  in  con- 
veying to  a  jury  how  acts,  physically  identical,  may  be  distinguished, 
according  to  the  rights,  relations,  intent,  and  circumstances  of  par- 
ties, as  vesting  or  divesting  possession,  or  as  not  having  that  effect. 
Leigh  v.  Jack,  5  Ex.  D.  264 ;  Pollock  &  Wright  on  Possession,  passim. 
For  some  purposes,  and  in  some  relations,  as  in  case  of  trespass 
(Riley's  Case,  Dears.  C.  C.  640),  apparent  possession  may  be  tanta- 
mount to  legal  possession  as  possession  may  be  relative.  As  a  gen- 
eral rule,  however,  legal  possession  imports  knowledge  and  consent. 
When  Joseph  replaced  in  his  brethren's  sacks,  without  their  knowl- 
edge, the  price  of  the  corn  they  had  bought,  though  they  had  ap- 
parent dominion  and  control  over  the  sacks,  with  their  contents,  they 
were  no  more,  before  discovering  it,  in  possession  of  the  money 
which  Joseph  had  put  in  by  an  act  of  trespass,  than  they  would  have 
been  of  dynamite  secretly  placed  there. 

In  the  present  case  there  was  a  physical  delivery,  in  intended  per- 
formance of  a  contract,  without  knowledge  or  intent  on  the  part  of 
the  owner  to  give,  or  on  the  part  of  the  taker  to  accept,  possession 
of  the  particular  chattel  actually  delivered.  Until  discovery  by  the 
taker,  the  legal  possession  seems  not  to  be  divested  out  of  the  owner, 
if  it  be  not  in  suspense.  Until  knowledge  and  election,  the  law  ought 
not  to  attribute  to  the  taker  an  intent  to  divest  the  owner's  posses- 
sion without  his  consent,  which  would  be  a  wrongful  act,  or  to  accept 
a  possession  which  in  case  of  some  chattels  might  be  onerous.  The 
physical  occupation  raises  an  inference  of  legal  possession,  just  as 
it  does  of  property  of  which  possession  is  part  and  symbol ;  but  com- 
mon error,  which  rebuts  contract,  also  rebuts  that  inference.  The 
character  of  the  physical  possession  is  ambiguous  until  discovery, 
and  ought  to  be  interpreted  in  an  innocent  rather  than  a  tortious  sense. 
If,  upon  discovery,  the  taker  elects  to  return  the  chattel  to  the  proper 
custody,  as  it  is  his  duty  to  do,  his  previous  relation  to  the  chattel  is 
thereby  determined,  as  resembling  custody  rather  than  possession. 
On  the  other  hand,  if  he  then  decides  to  misappropriate,  knowing  that 
there  has  been  no  consent  by  the  owner,  one  of  two  views  is  possible. 
His  possession  up  to  that  time  may  be  regarded  as  incomplete,  and  is 
then  finally  determined  by  his  tortious  election  as  wrongful  through- 
out. Woodward's  Case,  L.  &  C.  122.  Or  he  may  be  regarded  as 
then  and  there  for  the  first  time  taking  out  of  the  owner's  posses- 
sion the  chattel  which  is  to  be  considered  as  mislaid  rather  than  as 
lost.  During  the  suspense  period,  his  acts  done  in  innocent  ignorance 
•  are  excused;  but  the  excuse,  founded  not  on  consent,  but  on  mis- 
leading, applies  only  as  far  as  he  is  misled,  and  does  not  operate  when, 


456  LARCENY.  (Ch.   13 

knowing  the  mistake,  he  deliberately  commits  a  tort  by  taking  pos- 
session of  and  converting  the  chattel. 

The  second  question  for  consideration  is  the  lawfulness  of  posses- 
sion, where  the  delivery  has  taken  place  under  a  common  mistake 
of  such  a  character  as  to  exclude  the  mental  agreement  necessary 
to  the  formation  of  a  contract.  The  mistake  may  be  as  to  the  identity 
of  the  transferee  (Cundy  v.  Lindsay,  3  App.  Cas.  459),  or  as  to  the 
identity  of  the  subject-matter  of  contract,  as  in  Middleton's  and 
Ashwell's  Cases,  or  a  mistake  compounded  of  both  these  elements. 

It  may  be  taken  that  a  consent  to  possession  obtained  by  fraud  or 
force,  animo  furandi,  is  unavailing,  and  that  possession  under  it 
would  be  unlawful  and  trespassory.  It  is  also  certain  that  in  such  a 
case  as  we  have  here  to  deal  with  property  cannot  pass.  If  common 
mistake  prevents  contract,  and  property  cannot  pass,  why  should  pos- 
session, which  is  part  and  symbol  of  property,  pass,  when  neither 
party  intended  to  divorce  possession  from  property  ?  Physical  delivery 
by  owner  to  taker  may  be  evidence  of  consent;  but  delivery  can 
hardly  be  conclusive  and  irrebuttable  proof  of  an  intelligent  transfer 
of  possession,  when  neither  party  intends  to  make  or  accept  such 
transfer. 

Apart  from  Ashwell's  Case,3  16  Q.  B.  D.  190,  I  am  aware  of  no 
direct  authority  on  this  point.  In  Middleton's  Case,  L.  R.  2  C.  C.  38, 
the  majority  of  the  court  thought  that  possession  was  taken  invito 
domino,  because,  though  no  fraud  was  practiced,  the  prisoner  at  the 
moment  of  delivery  was  aware  of  the  mistake  and  had  animus  furandi. 
On  consideration,  I  think  that  animus  furandi  is  distinct  from,  and  is 
not  a  necessary  part  of,  trespass,  and  that,  even  without  animus 
furandi,  a  taker,  who  at  the  instant  of  delivery  is  aware  of  the  mis- 
take, cannot  rely  on  a  consent  which  he  then  knows  did  not  in  any 
true  sense  exist.  If  the  origin  of  his  possession  is  trespassory,  sub- 
sequent misappropriation  would  make  him  a  felon.  Why  is  it  that 
the  knowledge  of  the  owner's  mistake  by  the  taker  prevents  his 
reiving  on  consent?  It  is  not  because  the  taker  acts  fraudulently, 
for  he  may  have  no  dishonest  intent,  but  because  in  that  case  the 
taker  is  not  misled. 

I  agree  with  Baron  Bramwell,  in  Middleton's  Case,  L.  R.  2  C.  C. 
56,  that  the  state  of  the  owner's  mind  as  to  consent  cannot  be  govern- 
ed by  the  state  of  the  taker's  mind  as  to  knowledge  of  mistake  or 
felonious  intent.     Take  the  following  illustrations: 

1.  A  principal  receives  from  an  agent  a  £10  note  in  mistake  for 
a  £5  note.     He  sees  the  mistake  and  says  nothing,  intending,  without 

«In    Reg.    v.    Ashwill    the    Ourl    for    Crown    Cases    Reserved    was    equally 

divided  on  the  question  of  the  guilt  of  the  prisoner  on  a  Blmllar  Btate  of 
ludges  who  were  In  favor  of  conviction  were  of  opinion  thai  the 
tier  <iid  not  actually  take  possession  nniii  be  knew  whal  the  coin  was 
of  which  be  wen  taking  possession,  and,  as  at  that  time  be  determined  to 
deprive  the  owner  of  bis  property,  there  was  a  concurrence  of  act  and  intent. 
See  Reg   v.  Flowers,  16  Cox,  0.  0.  88  (1886). 


Sec.))  THE   TRESPASS.  4o7 

any  felonious  intent,  to  give  the  agent  a  fright  for  his  carelessness. 
He  afterwards  keeps  and  dishonestly  converts  the  note. 

2.  A  principal,  to  test  his  agent's  honesty,  hands  him  a  £10  as 
if  in  mistake  for  a  £o  note.  The  agent,  believing  that  the  principal 
is  really  making  a  mistake,  dishonestly  keeps  the  note.  In  these 
cases  how  can  the  consent  of  the  owner  depend  on  the  knowledge 
and  intent  of  the  taker? 

This  question  of  consent  is  one  of  substance,  and  not  form.  It 
cannot  be  treated  as  disposed  of  by  the  fact  of  physical  delivery 
without  more.  A  delivery  by  a  man  in  delirium  or  asleep,  or  hypno- 
tized, would  be  void,  because  unaccompanied  by  intelligent  volition. 
The  mistake,  as  it  occurs  to  me,  made  by  many  of  the  learned  judges 
in  Ashwell's  Case,  16  Q.  B.  D.  190,  seems  much  the  same  as  that 
which  was  corrected  in  Reg.  v.  Dee,  14  L.  R.  Ir.  468.  A  consent 
must  be  to  the  particular  act  or  thing  and  to  the  particular  person. 
A  consent  to  intercourse  obtained  by  fraudulent  personation  from 
a  married  woman,  in  the  belief  that  the  act  was  marital  connection 
with  her  husband,  was,  as  there  pointed  out,  no  consent  at  all  to 
an  act  of  adultery  with  a  stranger.  This  absence  of  consent  does 
not,  I  think,  depend  on  fraud.  It  is  a  conceivable  case  that  a  mar- 
ried woman  might,  in  the  dark,  submit  to  a  man  whom  she  believed 
to  be  her  husband,  without  guilty  intent  on  his  part,  from  a  mistake 
of  rooms  or  otherwise.  In  a  civil  action  for  assault  I  doubt  that  he 
could  justify  his  possession  of  the  woman  by  leave  and  license, 
though,  of  course,  from  absence  of  mens  rea,  he  would  not  be  guilty 
of  rape. 

It  may,  however,  be  said  that,  irrespective  of  consent,  if  the  taker 
of  a  chattel  delivered  under  mistake  is  protected  by  a  kind  of  es- 
toppel, he  is  to  be  deemed,  as  against  the  owner,  to  be  lawfully  in 
possession  while  such  estoppel  continues ;  that  is,  until  the  mistake  be- 
comes known  to  him.  This  suggestion  (which  has  caused  me  more 
difficulty  than  any  other  point),  I  think,  is  founded  partly  on  a  con- 
fusion of  physical  possession,  or  custody,  with  legal  possession,  and 
partly  on  a  misunderstanding  arising  from  the  use  of  the  word  "es- 
toppel"— an  expression  which  is  likely  to  cause  misconception.  Un- 
til discovery,  the  relation  of  the  taker  to  the  chattel,  which  he  holds 
without  consciousness  of  its  identity,  is,  against  the  owner,  cus- 
tody or  detention  only.  So  far  as  he  has  acted  under  the  mistake, 
he  is  protected.  This  protection  extends  to  his  custody  of  the 
chattel  and  to  his  conduct  in  parting  with  the  chattel,  if  he  has 
done  so.  The  delivery  under  mutual  mistake  of  identity  does  not 
work  an  estoppel  in  the  sense  that  the  property  must  be  taken  to 
pass.  But  the  taker  is  excused  in  respect  of  everything  attributable 
to  the  mistake  for  which  the  owner  is  responsible.  While  the  chat- 
tel remains  in  the  taker's  hands,  he  is  under  a  duty  to  give  it  up  on 
demand.  His  detention  of  the  chattel  till  discovery  is  lawful ;  but 
it   is   not  necessary   for  his  protection   that   such   physical   detention 


458  LARCENY.  (Ch.    13 

should  be  enlarged  into  possession,  though,  if  he  had  parted  with 
the  chattel  in  ignorance,  he  would  be  protected  even  as  to  the  prop- 
erty, notwithstanding  that,  by  reason  of  the  nonexistence  of  contract, 
the  property  had  not  passed  to  him.  It  appears  to  me  that  the  law- 
fulness of  the  detention  while  the  mistake  as  to  identity  continues 
does  not  draw  with  it  as  a  consequence  that  upon  discovery  the 
taker  can  lawfully  turn  detention  into  possession  and  appropriate 
the  chattel.  The  protection  given  to  mistake  does  not  extend  to 
fraud.  There  are  many  cases  in  which  a  taker  would  be  under  no 
responsibility  or  duty  to  the  owner  where  willful  misappropriation 
on  discovery  would  seem  to  be  theft. 

A  word  as  to  the  authorities.  Of  the  seven  principal  cases  re- 
lating to  the  question  of  mistake  and  possession — that  is  to  say, 
the  two  bureau  cases,  the  two  post  office  cases,  Vincent's  Case,  2 
Den.  C.  C.  464,  Middleton's  Case,  L.  R.  2  C.  C.  38,  and  Ashwell's 
Case,  16  Q.  B.  D.  190 — only  two  decisions  (that  is,  the  post  office 
cases)  tell  against  the  view  here  taken.  The  second  of  those  cases 
merely  followed  the  first.  They  were  both  decided  without  argu- 
ment, and  the  reasons  for  the  judgment  can  only  be  inferred.  Mr. 
Justice  Stephen  in  his  Digest,  art.  299,  and  Mr.  Justice  Cave  and 
other  judges  in  Ashwell's  Case,  16  Q.  B.  D.  190,  are  of  opinion 
that  the  bureau  cases  are  in  direct  conflict  with  the  post  office  cases. 
Whether  this  is  so  or  not,  I  prefer  the  reasoning  of  Lord  Eldon 
and  Baron  Parke  to  the  unargued  conclusions  in  the  latter  cases, 
and  in  my  view  that  reasoning  clearly  touches  the  facts  before  us. 
In  addition  to  these  two  decisions,  Mr.  Fitz  Gibbon  also  relied 
strongly  on  the  well-known  illustration  in  Middleton's  Case,  L.  R. 
2  C.  C.  45.  An  explanation  of  the  passage  is  attempted  by  Mr. 
Justice  Wright  (Possession,  p.  207),  and  before  us  Mr.  Bourke 
suggested  that  there  was  an  ambiguity  as  to  what  the  taking  by  the 
cabman  contemplated  in  the  illustration  meant.  In  any  view,  how- 
ever, the  dictum  cannot  bind  this  court.  It  was  not  necessary  to  the 
decision,  the  case  was  not  argued  apparently  with  reference  to  such 
authorities  as  the  bureau  cases  or  Riley's  Case,  Dears.  C.  C.  149, 
and  the  misconception  of  the  nature  of  consent  which  prevailed 
before  Reg.  v.  Dee,  14  L.  R.  Ir.  468,  will  be  seen  to  affect  many  of 
the  judgments.  Counsel  for  the  crown,  in  support  of  the  conviction, 
relied  on  the  judgments  and  reasoning  in  the  bureau  cases,  some 
of  the  reasoning  in  Middleton's  Case,  L.  R.  2  C.  C.  45,  and  in  Ash- 
well's Cast,  L6  Q.  B.  D.  190,  the  conviction  in  which  is  supported 
by  tlrc  opinions  of  Sir  F.  Pollock  and  Sir  R.  S.  Wright  in  their 
very  learned  and  acute  treatise  on  Possession,  from  which  I  have 
derived   much  ice.      The   same    conclusion    is   also   reached   in 

an  American  case,  Stale  v.  Duckcr,  8  Or.  394,  34  Am.  Rc|>.  590, 
dei :ided  unfortunately  only  by  a  single  judge.  As  to  the  cases  upon 
the  finding  of  lost  property,  I  do  not  think  that  they  are  directly  in 
point,  as   the  chattel    lure    was   not  lost.     I  have  some  difficulty  in 


Sec.  4)  THE  TRESPA8S.  4oO 

reconciling  their  doctrine,  as  to  the  necessity  of  animus  furandi  being 
simultaneous  with  the  taking,  with  Riley's  Case,  Dears.  C.  C.  149, 
that  trespass  followed  by  subsequent  felonious  misappropriation  is 
theft,  unless  the  explanation  be  that  animus  furandi  in  the  former 
cases  is  essential  to  trespass.  Nor  do  I  quite  see  how  the  reasonable 
belief  of  the  finder  as  to  the  owner  being  found  is  a  necessary  in- 
gredient in  trespass  at  common  law,  where  the  finder  takes  with 
the  intent  of  converting  to  his  own  use  whether  the  owner  is  found 
or  not,  animo  furandi,  and  not  for  the  purpose  of  safe  custody. 

Legal  principle  and  weight  of  authority,  I  think,  and  common 
sense  and  reason,  I  believe — if  I  may  be  excused  for  introducing 
such  matters  into  the  discussion  of  a  common-law  offense — point 
in  favor  of  conviction.  Following  their  guidance,  I  must  decide 
that  Hehir,  who  is  morally  a  rogue,  is  legally  a  felon  according  to 
the  law  of  this  kingdom.4 

Johnson,  J.5  In  the  present  case  I  fail  to  find  in  the  initiatory 
stage  "trespass"  or  anything  which  the  well-defined  law  considers 
equivalent  to  trespass.  Leech  was  Hehir's  pecuniary  debtor.  He 
intended  to  pay  his  debt  with  nine  shillings  in  specie  and  two  bank 
notes.  With  that  intention,  or,  in  the  words  of  the  case,  reserved 
"for  the  purpose  of  paying  this  sum,"  without  application  by,  or 
act  or  word  of,  Hehir,  Leech  of  his  own  motion  voluntarily  handed 
to  Hehir  the  nine  shillings  and  the  two  bank  notes  to  pay  his  debt. 
Leech's  intention  in  this  act  is  not  capable  of  positive  or  mathe- 
matical proof;  but  it  is  to  be  implied  from  his  acts,  and  I  have 
always  understood  the  law  to  be  that  a  man  is  taken  to  intend  the 
necessary  and  reasonable  consequences  of  his  own  acts.  If  Leech 
did  not  intend  to  give  Hehir  possession  of  the  two  particular  bank 
notes  which  he  placed  in  his  hand,  what  did  he  intend  to  give  him? 
Admittedly,  and  by  an  "intelligent"  act  of  his  own  mind,  he  in- 
tended to  give  Hehir  the  possession  of,  and  also  the  property  in, 
one  of  the  two  particular  notes.  What  different  intention  (does  it 
in  any  way  appear)  had  he  then  and  there  as  to  the  other  of  these 
two  particular  notes,  both  of  which,  by  the  same  act,  at  the  same 
instant  of  time,  he  gave  and  intended  to  give  into  Hehir's  hand? 
In  The  Queen  v.  Prince,  L.  R.  1  C.  C.  150  (one  of  the  strongest 
cases  in  the  books),  Blackburn,  J.,  at  page  155,  says:  "As  the  law 
now  stands,  if  the  owner  intended  the  property  to  pass,  though  he 
would  not  so  have  intended,  had  he  known  the  real  facts,  that  is 
sufficient  to  prevent  the  offense  of  obtaining  another's  property  from 
amounting  to  larceny."  That  appears  to  me  to  be  sound  law.  In 
the  present  case  the  property  in  the  £10  note  did  not.  in  my  opinion, 
pass  to  Hehir;  but  that  is  not  the  question  now.    If  Leech  had  known 

*  Madden,  Holmes,  and  Murphy,  J  J.,  delivered  concurring  opinions. 
Accord:     Wolf  stein  v.  People,  6  Hun  (N.  Y.)  121  (1875);    State  v.  Ducker, 
8  Or.  394,  34  Am.   Rep.   590  (1880). 
6  Part  of  the  opinion  is  omitted, 


4G0  LARCENY.  (CIl.    13 

that  the  note  in  question  was  a  £10  note,  and  not  a  £1  note,  prob- 
ably he  might  not  in  that  hypothetical  case  have  handed  it  to  Hehir; 
but  the  real  question  is  what,  under  the  then  existing  conditions,  was 
Leech's  intention — not  what,  under  some  other  imaginary  or  con- 
jectural circumstances  or  conditions,  might  or  would  have  been  his 
intention.  I  am  therefore  of  opinion,  on  the  facts,  that  Leech  in- 
tended to  deliver  and  did  deliver  possession  of  the  £10  note  as  well 
as  of  the  £l  note  to  Hehir,  and,  further,  that  in  the  then  condition 
of  his  mind  and  knowledge  he  intended  to  pass  the  property  in  each 
of  the  two  notes  to  Hehir,  and  did  not  intend  to  make  any  difference 
either  as  to  possession  or  property  between  them,  even  though  the 
property  in  the  £10  note  did  not,  owing  to  the  mistake,  vest  in  He- 
hir, and  that,  on  the  old  and  settled  principles  of  the  law,  Hehir 
committed  no  trespass,  nor  did  any  act  which  the  law  deems  equiva- 
lent to  trespass,  when  he  accepted  and  received  from  Leech  the 
note  in  question ;  and  that,  as  the  case  finds  that  when  the  note  "came 
to  his  hands"  (3  Inst.  107)  "when  he  first  got  possession  of  it  distinct 
from  Leech"  (2  East,  P.  C.  655),  he  had  no  animus  furandi,  con- 
sequently there  was  no  larceny,  although  subsequently  Hehir  found 
out  that  the  note  was  good,  not  only  for  £1,  but  for  £10,  and  then, 
retaining  the  £1  which  was  due  to  himself,  dishonestly  misappropri- 
ated the  £9  residue  of  the  proceeds  of  the  note,  which  in  law  he  had 
received  to  the  use  of  Leech.  This  conclusion  is  supported  by  the 
cases  cited  in  argument.  In  Reg.  v.  Mucklow,  Moo.  C.  C.  1G0, 
1827,  a  postman  called  at  the  house  (where  the  prisoner,  James 
Mucklow,  lived  with  his  father,  about  a  dozen  yards  from  St.  Mar- 
tin's Lane)  with  a  letter  addressed  to  "James  Mucklow,  St.  Martin's 
Lane,"  where  no  person  of  that  name  was  known.  The  prisoner 
and  his  father  were  out,  and  the  postman  left  a  message  that  there 
was  a  letter  for  them  which  they  were  to  send  for.  In  consequence 
of  that  message  the  letter  was  on  the  same  day  delivered  to  them, 
and  the  prisoner  found  in  it  a  draft  which  he  misappropriated.  James 
Mucklow  was  convicted  of  larceny  of  the  draft,  and  the  conviction 
was  held  wrong  on  the  ground  that  it  did  not  appear  that  the  prisoner 
had  any  animus  furandi  when  he  first  received  the  letter.  The  draft 
was  not  only  part  of  the  letter,  but  was  the  important  chattel,  which 
the  letter  only  covered  and  conveyed.  That  case  was  followed  in 
Reg.  v.  Davies,  Dears.  C.  C.  640  (1856),  and  with  these  decisions 
agree  the  illustration  of  a  person  handing  to  a  cabman  a  sovereign 
by  mistake  for  a  shilling,  given  in  the  judgment  in  The  Queen  v. 
Middleton,  L.  R.  2  C.  C.  38,  in  which,  in  the  judgment  of  seven  of 
the  judges,  it  is  said  (page  15)  :  "We  arc  decidedly  of  opinion  thai 
the  property  in  tin-  sovereign  would  not  vest  in  the  cabman,  and  that 
the  question  whether  the  cabman  was  guilty  of  larceny  or  not 
would  depend  upon  this:  Whether  he,  at  the  time  he  took  the  sov- 
ereign,  was  aware   of   the    mistake,    and    had    then    the   guilt)    intent, 


Sec.  4)  THE  TRE8PA8S.  461 

the  animus   furandi."     In   the   present  case   the  property  in   the   £10 
note  did  not,  in  my  opinion,  as  I   have  stated,  vest  in   Hehir ;    but, 
applying  this  test,  the  question  is,  was  Hehir,  when  he  took  (received) 
the  £10  note,  aware  of  the  mistake,  and  had  he  then  the  guilty  intent? 
On  the  facts  of  the  present  case  that  issue  must  be  determined  in 
favor  of  the  prisoner.     It  is  erroneously  stated  in  Stephen's  Digest  of 
the  Criminal  Law   (note,  3d  Ed.,  p.  228;    5th  Ed.,  p.  262)   that  the 
arguments  in  The  Queen  v.   Middleton,  L.   R.   2   C.  C.  38,  are  not 
reported.     No  counsel  appeared  for  the  prisoner,  but  the  arguments 
for  the  crown  by  Coleridge,  A.  G.  (Metcalfe  and  Slade  with  him), 
are  reported  in  12  Cox,  C.  C.  262,  and  several  cases,  including  Merry 
v.  Green,  7  M.  &  W.   6^3,  were  referred  to.     This  case  of  Merry 
v.  Green,  7  M.  &  W.  623,  and  also  Cartwright  v.  Green,  8  Ves.  405, 
were  much  pressed  by  Air.  Bourke,  for  the  crown,  in  his  very  clear 
argument.      In    Cartwright  v.    Green,   8   Ves.   405,   the   owner   of   a 
bureau  concealed  900  guineas  in  specie  in  a  secret  drawer  and  died, 
leaving  it  undiscovered.    Her  personal  representative,  knowing  nothing 
about  the  money  lent  the  bureau  to  his  brother,  who  took  it  to  India 
and  brought  it  back.     He  knew   nothing  about  the  money.     Then 
the  bureau  was  sold  to  Dick,  no  one  all  the  time  knowing  anything 
about  the  money.     Dick  lent  the  bureau  to  Green   (one  of  the  de- 
fendants),  a   carpenter,   for   the   sole   purpose   of   repairing   it.      He 
and  his  wife  and  another   ransacked  the  bureau,   found  the  money, 
secreted  it,  and  converted  it  to  their  own  use,  invito  domino,   with- 
out the  will  of  the  owner.     It  was  held  this  was  a  felony,  and  there- 
fore a  larceny,  and  rightly  so.     First,  the  900  guineas  were  personal 
chattels   contained  in,  but  independent  of,  the  bureau,  and   forming 
no  part  of  it.     Second,  the  bureau,  and  the  bureau  alone,  was   de- 
livered by  Dick,  the  owner,  to  Green,  a  carpenter,  in  the  way  of  his 
trade,  for  the  limited  purpose  to  repair  it  for  Dick.     The  specie  was 
not  delivered  or  intended  to  be  delivered  to  Green  for  any  purpose. 
Third,  when  Green  first  discovered  the  money,  he  must  then  reason- 
ably have  believed,  as  well  as  known,  that  he  could  have  found  the 
owner  either  in  or  through  Dick,  the  owner  of  the  bureau  who  em- 
ployed him  to  repair  it,  and  he  from  the  first  appropriated  the  money 
to  himself.    The  case  was  not  unlike  the  old  case  of  a  carrier  break- 
ing bulk.     In   Merry  v.  Green,    Parke,   B.,  in   delivering  the   judg- 
ment of  the  court  ordering  a  new  trial,  says:    "It  is  said  that  the 
offense  cannot  be  larceny,  unless  the  taking  would  be  a  trespass,  and 
that  is  true;    but  if  the  finder,   from  the   circumstances,  must  have 
known  who  was  the  owner,  and,  instead  of  keeping  the  chattel  for 
him,  means  from  the  first  to  appropriate  it  to  his  own  use,  he  does 
not  acquire  it  by  a  rightful  title,  and  the  true  owner  might  main- 
tain trespass."     The  ground  of  the  new  trial  was  that  the  question 
should  be  left  to  the  jury  whether  the  plaintiff  had   reason  to  be- 
lieve he  bought  the  contents  of  the  bureau  (if  any),  and  consequent- 
ly had  a  color  of  right  to  the  property.     Therefore  neither  of  these 


462  LARCENY.  (Ch.  13 

cases,  in  my  opinion,  in  the  least  governs  the  facts  of  the  present 
case  or  impeaches  the  decisions  of  Reg.  v.  Mucklow,  1  Moo.  C.  C. 
160,  or  Reg.  v.  Davies,  Dears.  C.  C.  610,  or  the  illustration  of  the 
cabman's  case,  or  the  old  principle  of  the  law.  And  it  may  be  ob- 
served that  the  Legislature,  as  mentioned  in  2  Russ.  (5th  Ed.) 
113,  has  by  St.  1  Vict.  c.  36,  §  31,  met  (so  far  as  the  post  office  was 
concerned)  such  cases  as  Mucklow's  Case,  1  Moo.  C.  C.  160.  For 
other  purposes  the  Legislature  has  left  unaltered  the  old  principle 
of  larceny  at  common  law. 

For  these  reasons  I  am  of  opinion  that  the  question  submitted 
by  the  case  should  be  answered  in  the  negative,  and  the  conviction 
reversed. 

O'Brien,  J.6  The  nature  of  the  criminal  law  is  that  it  is  con- 
versant with  acts.  People  are  not  punished  for  temptations.  Whose 
was  the  act  in  this  case?  There  was  no  act  but  that  of  the  owner; 
for,  according  to  the  argument,  the  prisoner  would  have  been  guilty 
of  larceny  if  he  had  simply  retained  the  £10  note  after  he  knew 
what  it  was.  For  the  purpose  of  this  view,  the  period  of  time  during 
which  he  was  in  possession  of  the  note  without  knowing  the  amount 
must  be  blotted  out  altogether— not  in  law  merely,  but  even  in  physi- 
cal existence.  In  fact,  it  must  be  considered  the  same  as  mere  va- 
cancy, and  yet,  by  some  curious  legal  fiction,  the  offense  of  the 
accused  is  carried  back  over  that  vacancy  to  the  time  of  the  first 
transaction,  to  satisfy  the  words  of  the  indictment  that  he  "feloni- 
ously took,"  when  it  is  certain  he  did  not  take.  Thus  a  crime  com- 
mitted to-day  is  projected  forward  a  month  hence,  or  even  it  may 
be  a  year,  to  the  time  when  the  person  conceives  the  idea  of  appro- 
priating the  article.  By  the  same  kind  of  fiction,  the  trespass,  which, 
according  to  the  authorities,  must  exist  in  the  crime,  is  wholly  got 
rid  0f — not  because  the  prisoner  was  innocently  possessed  until  the 
dishonest  intention  arose,  but  because  there  was  no  possession.  And 
thus  a  possession,  which  did  not  exist  at  all  when  he  was  innocent, 
came  into  existence  when  he  had  a  guilty  mind,  so  as,  without  any 
act  but  of  the  mind,  to  make  out  that  he  feloniously  took.  The 
prisoner  is  not  a  person  who  obtains  something  wrongfully  by  latro- 
cinium,  by  the  direct  and  conscious  invasion,  open  or  secret,  of  anoth- 
right.  He  is  not  a  bailee.  He  is  not  a  finder.  We  must  invent 
a  ■  gory.     He  is  a  finder  out.     In  other  words,  he  commits  a 

crime  |  peration  of  the  mind.     But   we  have  still   further  to 

go  in  order  to  fulfill  the  definition  of  larceny.  What  becomes  of  the 
asportavit— the  other  element  in  the  crime?  When  decs  the  person 
carry  away?  Arc  the  taking  and  carrying  away  distinct  things  in 
this  new  theory  of  larceny?  Or  are  they  both  comprised  in  what 
may  be  a  purely  mental  act— the  appropriation?     I   fear  it  must  be 

a  part  of  the  opinion  is  omitted 


Sec.  4) 


THE   TRESPASS. 


402 


answered  that  the  asportavit  disappears  altogether — that  there  is  no 
room  for  it  and  the  cepit  in  the  same  thought  and  in  the  same  instant. 
It  may  be  thought  that  these  are  almost  ridiculous  refinements,  but 
they  become  so  by  reason  of  the  refinements  they  are  intended  to 
meet ;  for  we  are  engaged  in  pursuing  a  phantom — an  impalpable 
subtlety  that  eludes  comprehension,  and  makes  thoughts  and  fictions 
and  relations  the  rule  of  conduct  as  to  crime.  The  law,  above  all 
the  criminal  law,  that  takes  from  a  man  the  natural  dominion  over 
himself,  and  delivers  him  over  as  a  slave  to  another  power  for  punish- 
ment, was  made  to  be  understood,  as  well  as  to  be  obeyed. 
In  my  opinion  the  conviction  ought  to  be  reversed.7 


(B)  Distinction  Betzveen  Possession  and  Custody. 

Hussey  put  this  question:  If  a  shepherd  steal  the  sheep  that  are 
in  his  care;  or  a  butler  the  pieces  that  are  in  his  care;  or  other 
servants  things  that  are  in  their  care,  if  this  should  be  called  felony. 
And  it  seemed  to  him  that  it  should,  and  he  cited  a  case,  which  was, 
that  a  butler  had  stolen  certain  stuff  that  was  in  his  care,  and  was 
hanged  for  it.  Hough  cited  the  case  of  Adam  Goldsmith,  of  Lon- 
don, who  had  stolen  certain  stuff  that  was  in  his  care,  and  was 
hanged  for  it.  Brian  :  It  cannot  be  felony,  because  he  cannot  take 
them  vi  et  armis,  since  he  had  the  care  of  them.  And  the  justices 
were  of  the  same  opinion,  and  hence,  there  was  no  discussion,  etc. 

Reporter's  Note  1487.    (Y.  B.  3  Hen.  VII,  12,  pi.  9). 


-i 


H-l 


JL' 


ANONYMOUS. 

(Old  Bailey,  1664.     Kelyng,  35.) 

At  the  Sessions  in  the  Old  Bailey,  holden  there  the  12  October, 
1664.  A  silk  throster  had  men  come  to  work  in  his  own  house,  and 
delivered  silk  to  one  of  them  to  work,  and  the  workmen  stole  away 
part  of  it.  It  was  agreed  by  Hyde,  Chief  Justice,  myself,  and  Brother 
Wylde  being  there,  that  this  was  felony,  notwithstanding  the  de- 
livery of  it  to  the  party,  for  it  was  delivered  to  him  only  to  work, 
and  so  the  entire  property  remained  then  only  in  the  owner,  like  the 
case  of  a  butler,  who  hath  plate  delivered  to  him;    or  a  shepherd, 


7  Sir  O'Brien,  L.  C.  J.,  Palles,  C.  B.,  and  Andrews.  J.,  delivered  concur- 
ring opinions.     See  Columbia  Law  Review,  vol.  7,  p.  395. 

Accord:  Bailey  v.  State,  58  Ala.  414  (1877);  Jones  v.  State,  97  Ga.  430,  25 
S.  B.  319,  54  Am.  St.  Rep.  433  (1895);  Thompson  v.  State,  55  S.  W.  330 
(1900) ;  Cooper  v.  Commonwealth,  60  S.  W.  938,  22  Ky.  Daw  R.  1627,  52  L. 
R.  A.  136  (1901). 


iCA  LARCENY.  (Cll.    13 

who  hath  sheep  delivered,  and  they  steal  any  of  them,  that  is  felony 
at  the  common  law.  Vide  13  Eliz.  4,  10 ;  3  Hen.  VII,  12 ;  11  Hen. 
VII,  14.    Accord:     Poulton  de  Pace,  126. 


REX  v.  PARADICE. 
(Court  for  Crown  Cases  Reserved,  17G6.     2  East,  P.  C.  565.) 

Francis  Paradice  was  indicted  for  stealing  a  bill  of  exchange  of 
£100  value,  the  property  of  William  Periam.  The  prosecutor  to 
whom  the  bill  was  indorsed  was  a  draper  at  Devizes,  and  the  prison- 
er, who  was  his  bookkeeper  on  a  salary,  kept  his  accounts,  and  re- 
ceived and  paid  money  for  him,  but  did  not  live  in  his  house,  but  came 
every  day  there  to  transact  his  business.  The  prosecutor  deliver- 
ed the  bill  in  question,  with  several  others,  to  the  prisoner,  and 
ordered  him  to  send  them  by  that  day's  post,  as  he  had  often  done 
before,  from  the  Devizes  to  the  prosecutor's  banker  in  London,  as 
cash  to  be  accounted  for  to  the  prosecutor.  The  prisoner  next  day 
asked  the  prosecutor's  leave  to  go  to  a  town  in  the  neighborhood, 
which  was  consented  to  on  condition  that  he  returned  the  next  day 
bv  12  o'clock.  The  prisoner  went  to  Salisbury,  got  cash  for  the 
bill,  which  was  indorsed  by  the  prosecutor,  and  next  by  the  prisoner, 
who  was  afterwards  apprehended  at  Exeter  with  part  of  the  bills  and 
the  money.  Gould,  J.,  before  whom  he  was  tried  and  convicted, 
respited  judgment  to  take  the  opinion  of  the  judges  whether  this 
were  a  felony  or  a  breach  of  trust.  In  Easter  Term,  1766,  all  the 
judges  (except  Lord  Camden,  who  was  absent)  held  it  larceny, 
upon  the  principle  that  the  possession  still  continued  in  the  master. 


REGINA  v.  THOMAS. 

(Worcester  Assizes,  1841.    0  Car.  &  P.  741.) 

Larceny.     The  prisoner  was  indicted  for  stealing  a  sovereign,  the 
property  of  Thomas  Hins. 

It  appeared  that  the  prosecutor  and  the  prisoner,  having  entered  a 

beer  ere   drinking   together,   and   that    the   prosecutor,   who 

ed  to  trcit  the  prisoner,  took  a  sovereign  out  of  his  pocket 

for  the  purpose  of  paying  and  offered  it  to  the  landlady  to  change, 

and   upon  her  declaring  her  inability  to  do  so  she  placed  it  on  the 

.  and  the  pri  oner  said,  "I'll  go  and  get  change."     The  prose- 

1,   "You   won'1    come   hark   with   the   change,"   to    which    the 

prisoner  replied,   "Never    tear,-'   and,   taking  up   the  sovereign,   left 

the  house  and  did  not  again  return.     It  appeared   from  the  evidence 

of  the  prosecutor  that  he  was  not  aware  of  the  last  remark  of  the 


Sec.  4)  THE  TRESPASS.  465 

prisoner,  nor,  at  first,  that  he  had  gone  out  with  the  sovereign; 
but  he  had  not  offered  any  opposition  to  the  prisoner's  taking  it,  hav- 
ing left  the  sovereign  on  the  table  after  his  reply  to  the  prisoner's 
offer. 

Streeten,  for  the  prisoner,  submitted  that  the  intention  of  the 
prisoner  was  clearly  to  be  collected  from  the  evidence,  and  that,  as 
it  appeared  that  the  taking  was  with  intent  to  get  change,  any  sub- 
sequent felonious  intent  of  converting  it  to  his  own  use  would  not 
constitute  a  trespass  sufficient  to  render  it  a  felony,  and  that,  the 
prosecutor  having  parted  with  the  legal  possession  of  the  sovereign, 
the  subsequent  appropriation  of  the  money  by  the  prisoner  did  not 
amount  to  larceny. 

Huddleston,  for  the  prosecution,  submitted  that  it  did  not  appear 
by  the  evidence  that  the  prosecutor  had  consented  to  the  taking  of 
the  sovereign. 

Coleridge,  J.  I  think  that  the  passive  conduct  of  the  prosecutor 
amounted  to  a  sufficient  sanction  of  the  taking. 

Huddleston.  I  submit  that  the  prosecutor  had  not  divested  him- 
self of  the  property  in  the  sovereign  by  even  giving  it  to  the  prisoner 
for  change,  and  that  it  remained  his  till  it  was  actually  changed. 

Coleridge,  J.  (having  conferred  with  Gurney,  B.).  It  appears 
quite  clear  that  the  prosecutor,  having  permitted  the  sovereign  to 
be  taken  away  for  change,  could  never  have  expected  to  receive  back 
again  the  specific  coin,  and  he  had  therefore  divested  himself,  at 
the  time  of  the  taking,  of  the  entire  possession  in  the  sovereign,  and 
consequently  I  think  that  there  was  not  a  sufficient  trespass  to  con- 
stitute a  larceny. 

Verdict — Not  guilty.1 


REGINA  v.  JONES. 

(Monmouth  Assizes,  1842.     1  Car.  &  M.  611.) 

Larceny.  The  prisoner  was  indicted  for  stealing  a  pig,  the  prop- 
erty of  Robert  Baker. 

It  appeared  that  on  Saturday,  the  18th  of  December,  1841,  the 
prosecutor  had  employed  the  prisoner  to  drive  six  pigs  from  Car- 
diff to  Usk  Fair,  which  was  on  the  20th  of  that  month,  for  which 
he  paid  the  prisoner  six  shillings.  The  prisoner  had  never  before 
been  in  the  employ  of  the  prosecutor,  and  had  no  authority  to  sell 
any  of  the  pigs.  It  appeared  that  on  Sunday,  the  19th  of  Decern- 
ber,  the  prisoner  left  one  of  the  pigs  at  Mr.  Matthews',  of  Coed- 
kernew,  to  be  left  till  the  next  night,  saying  that  it  was  too  tired 
to  walk.     On  Monday,  the  20th,  the  prisoner  told  the  prosecutor  at 

i  Accord:     Reg.  v.  Reynolds,  2  Cox,  C.  C.  170  (1847),  disapproved  in  Jus- 
tices v.  People,  90  N.  Y.  12,  43  Am.  Rep.  135  (1SS2).     Contra:     Murphy  v. 
People,  104  111.  528  (1882). 
Mik.Cb.L.— 30 


466  LARCENY.  (Ch.    13 

Usk  that  he  had  left  the  pig  at  Mr.  Matthews'  because  it  was  tired ; 
and  the  prosecutor  then  desired  the  prisoner  to  call  at  Mr.  Mat- 
thews' and  ask  him  to  keep  the  pig  for  him  till  the  following  Sat- 
urday, and  he  would  pay  him  for  the  keep.  On  Tuesday,  the  21st, 
the  prisoner  called  at  Mr.  Matthews',  and  sold  the  pig  to  Mr.  Mat- 
thews for  a  guinea;  and  on  Thursday,  the  23d,  he  told  the  prose- 
cutor that  he  had  seen  the  pig  at  Mr.  Matthews',  and  that  Mr.  Mat- 
thews would  keep  it  till  the  following  Saturday. 

Cress  well,  J.     Is  this  a  larceny? 

Greaves,  for  the  prosecution.  The  difficulty  is  that  the  prisoner 
did  not  sell  the  pig  at  the  time  he  left  it,  but  left  it  because  it  was 
tired,  and  sold  it  when  it  was  no  longer  in  his  possession. 

Cresswell,  J.  There  is  no  evidence  that  the  prisoner  had  any 
intention  to  steal  the  pig  when  he  received  the  six  pigs  to  dn've. 

Greaves.  I  submit  that  this  is  not  necessary,  as  the  prisoner  had 
merely  the  custody  of  the  pigs,  and  that  if  he  had  sold  one  of  the 
pigs  on  the  road  it  would  have  been  larceny.  In  the  case  of  Rex 
v.  McNamee,  M.  C.  C.  368,  Brit.  C.  C.  vol.  2,  it  was  held  that  if  a 
man  who  is  hired  to  drive  cattle  sell  them  it  is  a  larceny,  although 
it  be  found  by  the  jury  that  he  did  not  intend  to  steal  the  cattle  at 
the  time  he  took  them  into  his  charge,  because  he  has  only  the  cus- 
tody of  the  cattle,  and  not  the  right  of  possession.  So  in  the  case 
of  Regina  v.  Harvey,  9  C.  &  P.  353,  38  E.  C.  L.  R.  150,  where  the 
owner  of  goods  employed  a  person  not  in  his  service  to  take  them 
to  a  particular  place,  show  them  to  a  customer,  and  bring  them 
back,  but  did  not  authorize  him  to  sell  them  or  leave  them  with  the 
customer,  and  he,  instead  of  taking  the  goods  to  the  place  speci- 
fied, sold  them  for  his  own  advantage,  it  was  held  that  this  was  a 
larceny,  as  he  had  the  custody,  and  not  the  possession,  of  the  goods. 

Cresswell,  J.  The  judges  appear  to  have  acted  lately  on  a  very 
nice  distinction.  If  a  man  is  allowed  to  have  the  possession  of  a 
chattel,  and  he  converts  it  to  his  own  use,  it  is  not  larceny,  unless  he 
had  an  intention  of  stealing  it  when  he  obtained  the  possession  of 
it;  but,  if  he  has  merely  the  custody  of  a  chattel,  he  is  guilty  of  a 
larceny  if  he  disposes  of  it,  although  he  did  not  intend  to  do  so  at 
the  time  when  he  received  it  into  his  custody.1  Here  it  appears 
that  the  prisoner  left  the  pig  on  Sunday,  the  19th,  and  if  nothing 
more  had  appeared  I  should  have  held  that  Matthews  kept  it  mere- 
ly  for  the  prisoner;    but  on   Monday,   the   20th,   he   told   the  prose- 

i  "Various  opinions  formerly  prevailed  whether  servants,  having  the  cus 
tody  <>f  their  master's  g is.  were  guilty  of  felony  by  fraudulently  em- 
bezzling them,  and  converting  them  t<»  their  own  use;  bul  st.  121  Qen.  VIII, 
c,  7.  which  makes  this  offense  felony,  does  nol  Bay  thai   it   was  doI   felony 

before  by  th< 01 law,  bul  only  recites  thai  tin-  matter  had  been  doubted, 

and  this  ad  of  Parlia a1  <ii'i  not,  in  my  Judgment,  mean  <<•  weaken,  bul  <>» 

the  common  law.    Ever  Bince  tin*  act,  therefore,  the  opinion  of  those 
before  the  ad    held   Hint   servants  embezzling  their  master's  property 
was  relony  has  been  confirmed."    Gould,  .1..  in  Etei  v.  Wilklns,  1  Leach  (4th 
Ed.)  323  (1789). 


Sec.   4)  THE  TRKSrASS.  407 

cutor  that  he  had  left  it  there,  and  the  prosecutor  told  him  to  ask 
Matthews  to  allow  the  pig  to  remain  there  till  the  Saturday.  The 
prosecutor  thus  consented  to  Matthews  being  the  keeper  of  the  pig 
for  him,  and  therefore  his  custody  became  the  custody  of  the  pros- 
ecutor, and  then  the  prisoner  goes  and  sells  the  pig  to  Matthews 
I  think  that  the  prisoner  must  be  acquitted. 
Verdict — Not  guilty. 


PEOPLE  v.   CALL. 
(Supreme  Court  of  New  York,  1845.    1  Denlo,  120.) 

Beardsley,  J.1  According  to  the  evidence,  as  stated  in  the  bill 
of  exceptions,  the  note  was  handed  to  the  prisoner  for  a  special 
purpose;  that  is,  to  indorse  upon  it  a  payment  which  had  then  been 
made.  He  appeared  to  be  making  the  indorsement,  but  then  folded 
up  the  note  and  with  it  left  the  house. 

As  every  larceny  includes  a  trespass,  the  taking  must  be  from  the 
possession  of  another  person.  But  here  it  is  necessary  carefully  to 
discriminate  between  what  constitutes,  in  law,  a  possession  of  prop- 
erty, and  that  which  amounts  only  to  its  care  and  charge. 

A  servant  has  the  charge,  but  not  the  possession,  of  his  mas- 
ter's goods.  The  possession  is  in  the  master,  and  the  servant  may 
commit  larceny  by  •  converting  the  property,  with  which  he  is  thus 
intrusted,  to  his  own  use.  This  principle  applies  to  servants,  strictly 
so  called,  as  it  also  does  to  apprentices,  clerks,  and  workmen  of  ev- 
ery description,  who  are  employed  in  the  care  and  management  oi 
the  owner's  property,  under  his  immediate  supervision  and  control. 

Where  possession  of  the  property  is  obtained  by  one  as  a  bailee 
or  purchaser,  although  by  trick  and  fraud,  the  case  stands  on  other 
grounds,  but  which  need  not  now  be  stated.  The  note  was  not  re- 
ceived by  the  prisoner  as  a  bailee,  or  a  purchaser,  but  for  the  mere 
purpose  of  doing  for  the  holder  what  he  was  about  to  do  for  him- 
self. The  indorsement  would  be  the  act  of  the  holder,  although 
made  by  the  hand  of  the  prisoner.  It  was  to  be  done  under  the 
immediate  direction  and  control  of  the  owner,  and  could  only  be 
made  by  the  prisoner  as  servant  or  agent  of  the  person  for  whom 
he  was  acting.  As  the  note  was  thus  received  by  the  prisoner  as  a 
servant  of  the  holder,  the  legal  possession  was  not  changed.  The 
prisoner  was  in  charge  of  the  note  while  making  the  indorsement, 
but  the  owner  still  had  possession. 

It  was  unnecessary,  therefore,  that  the  jury  should  have  found 
the  existence  of  a  felonious  intent,  when  the  prisoner  received  the 
note.  If  it  came  upon  him  after  the  note  had  been  received,  and 
while  he  was  engaged  in  making  the   indorsement,  or  subsequently, 

i  Part  of  this  case  is  omitted. 


468  LARCENT.  (Ch.   13 

and  was  carried  into  effect  by  converting  the  property  to  his  own 
use,  it  was  larceny.  The  charge,  therefore,  was  not  strictly  cor- 
rect, in  requiring  the  jury  to  find  the  anirius  furandi  at  the  time 
when  the  note  passed  into  the  prisoner's  hands.  It  was  enough 
that  it  existed  while  he  held  it  as  servant  to  the  owner.  A  felonious 
conversion  under  such  circumstances  was,  in  law,  a  felonious  taking 
from  the  owner. 

The  charge  of  the  court  virtually  required  the  jury  to  find  a 
felonious  intent  at  the  time  of  conversion,  as  it  did  expressly  at  the 
time  the  prisoner  received  the  note.  The  last  requisite  of  the  charge 
was  erroneous;  but  it  was  an  error  which  could  not  prejudice  the 
prisoner.  It  required  the  jury  to  find  more  than  the  law  made 
necessary  to  warrant  his  conviction  of  the  offense;  but  of  that  he 
jannot  complain,  and  a  new  trial  should  be  denied. 

New  trial  denied. 


REGINA  v.  SAWARD. 

(Central  Criminal  Court,  1S51.     5  Cox,  C.  C.  295.) 

The  prisoner  was  indicted  for  larceny.. 

It  appeared  that  he  was  employed  by  the  prosecutor,  who  was 
a  tarpaulin  manufacturer,  to  make  up  for  him  canvas  bags.  The 
canvas  was  cut  out  by  the  prisoner,  at  the  prosecutor's  shop,  and 
taken  away  by  him,  and  it  was  his  duty  to  make  it  up  at  his  own 
house  and  bring  back  the  bags  complete.  A  portion  of  a  large 
quantity  of  material  received  by  him  was  worked  up  and  brought 
back  to  the  prosecutor.  The  remainder  he  pawned,  and  appropri- 
ated the  money  to  his  use. 

The  Recorder  (after  consulting  Mr.  Justice  Cressweel).  An  ex- 
tremely nice  point  of  law  arises  in  this  case.  If,  under  ordinary 
circumstances,  a  servant  has  possession  of  his  master's  goods,  the 
possession  of  the  servant  is  the  possession  of  the  master,  and  if  he 
makes  away  with  the  property  he  is  guilty  of  larceny.  But  a  very 
refined  distinction  has  been  taken  between  the  case  of  a  servant 
having  goods  of  his  master's  upon  his  master's  premises  and  having 
them  to  work  up  upon  his  own.  He  is,  in  the  latter  case,  consid- 
ered, not  in  the  light  of  o  servant,  but  in  that  of  a  bailee.  If  he  then 
makes  away  with  the  property,  he  is  guilty  of  a  fraud,  but  not  of  a 
larceny.  If,  on  the  other  hand,  a  servant  so  intrusted  were  to  sep- 
arate a  portion  of  the  goods,  and  dispose  of  them  to  his  own  use, 
then  the  very  acl  of  separating  them  would  determine  the  bailment. 
lie  would  no  lou;..!  be  in  lawful  possession  of  those  he  had  so 
eparated  with  a  fraudulent  intent,  and  would  therefore  be  guilty 
of  larceny  in  converting  them.  Here  it  appears  the  prisoner  had 
eparated  and  made  up  a  portion  of  the  materials,  which  would  he 
a    law  ful    act.      His    pawning    the    rest,    therefore,    would    not    render 


Sec.  4)  THE  TRESPASS.  469 

him  guilty  of  larceny.     I  have  consulted  Mr.  Justice  Cresswell  on 
the  subject,  who,  after  some  hesitation,  thinks  that  the  jury  should 
be  directed  to  acquit  the  prisoner. 
Verdict — Not  guilty. 


PEOPLE  v.  MONTARIAL. 

(Supreme  Court  of  California,  1898.     120  Cal.  691,  53  Pac.  355.) 

Louis  Montarial  was  convicted  of  grand  larceny  in  stealing  certain 
moneys  from  one  Paillac,  and  appeals.  The  evidence  showed  that 
Montarial  and  Paillac  were  roommates,  and  that  the  latter  gave 
the  defendant  the  money  in  question,  done  up  in  a  package,  to  be 
placed  for  safe-keeping  in  defendant's  trunk.  Defendant  placed 
the  money  in  the  trunk,  where  it  remained  for  over  two  years.  De- 
fendant carried  the  key,  but  always  unlocked  the  trunk  at  the  re- 
quest of  Paillac.  Defendant  had  no  authority  to  handle  the  pack- 
age except  in  the  presence  of  Paillac,  and  then  only  for  the  pur- 
pose of  handing  it  to  Paillac  or  replacing  it  at  his  direction.1 

Van  Fleet,  J.  Taking  the  whole  evidence  together,  with  all  it 
tends  to  show,  and  we  are  satisfied  that  it  does  not  establish  a  bail- 
ment or  intrusting  of  the  money  to  defendant.  As  we  regard  it,  the 
evidence  does  not  show  that  Paillac  ever  in  fact  really  parted  with 
the  possession  of  his  money.  While  it  was  locked  in  the  trunks  of 
defendant,  to  which  the  latter  retained  the  keys,  the  trunks  were 
at  all  times  as  much  in  the  possession  of  Paillac,  and  with  practi- 
cally the  same  freedom  of  access  to  the  latter,  as  in  that  of  the  de- 
fendant. In  legal  contemplation  the  use  of  the  trunks  was  loaned 
or  given  to  Paillac  as  a  place  for  keeping  his  money.  The  mere 
fact  that  defendant  carried  the  keys  is  not  a  material  consideration. 
As  we  have  seen,  the  keys  were  always  forthcoming  when  demand- 
ed by  Paillac  for  access  to  his  money;  and  the  money  was,  there- 
fore, to  all  practical  intents  and  purposes,  as  much  under  his  per- 
sonal supervision  and  protection  as  of  defendant.  Indeed,  more  so, 
since  the  latter  had  no  right  or  authority  to  tamper  with  it  in  any 
way,  except  as  directed  by  its  owner. 

Much  is  made  by  defendant  of  the  fact  that  Paillac  testified  that 
he  "intrusted"  the  money  to  defendant;  and  it  is  urged  that  this 
constitutes  embezzlement,  because  that  offense  consists  of  "the  fraud- 
ulent appropriation  of  property  by  a  person  to  whom  it  has  been 
intrusted."  Pen.  Code,  §  503.  But,  to  reach  the  meaning  of  the 
witness,  his  expressions  must  be  read  in  the  light  of  his  whole  tes- 
timony and  all  the  circumstances;  and  when  so  read  it  is  clear  that 
his  money  was  not  intrusted  to  the  keeping  of  the  defendant  in  a 

'Yue  statement  of  *aots  \s  abridged  from  the  opinion  of  the  court,  and 
part  of  the  opinion  is  omitted. 


470  LARCENY.  (Cll.    13 

manner  to  bring  it  within  the  definition  of  embezzlement.  Defend- 
ant let  Paillac  have  the  use  of  his  trunks  as  a  place  of  safety  for 
his  property,  and  the  only  dominion  defendant  rightfully  exercised 
over  it  was  a  perfunctory  handling  of  it  in  the  presence  of  the 
owner.  The  case,  although  differing  in  its  circumstances,  is  not 
to  be  distinguished  in  principle  from  that  of  People  v.  Johnson,  91 
Cal.  265,  27  Pac.  663,  where  it  is  held  that,  where  the  owner  puts 
his  property  into  the  hands  of  another  to  do  some  act  in  relation  to 
it  in  his  presence,  he  does  not  part  with  the  possession  of  it,  and 
the  conversion  of  it  animo  furandi  is  larceny,  and  not  embezzlement. 
See,  also,  2  Russell  on  Crimes  (8th  Am.  Ed.)  21. 
We  are  satisfied  that  the  judgment  should  be  affirmed. 


(C)   When   Delivery    Vests   Property. 
REGINA  v.   STEWART. 

(Kent  Assizes,  1S45.    1  Cox,  C.  C.  174.) 

The  prisoners  were  indicted  for  larceny,  under  the  following 
circumstances:  They  passed  for  husband  and  wife,  and,  having 
taken  a  house  at  Tunbridge  Wells,  Mrs.  Stewart  went  to  the  shop 
of  the  prosecutor,  selected  the  goods  in  question  to  the  amount  of 
ilO,  and  ordered  them  to  be  sent  to  her  home.  The  prosecutor  ac- 
cordingly dispatched  the  goods  by  one  Davies,  and  gave  him  strict 
injunction  not  to  leave  them  without  receiving  the  price.  Davies, 
on  arriving  at  the  house,  told  the  two  prisoners  he  was  instructed 
not  to  leave  the  goods  without  the  money,  or  an  equivalent.  After 
a  vain  attempt  on  the  part  of  K.  Stewart  to  induce  Davies  to  let 
hii ii  have  the  property  on  the  promise  of  payment  on  the  morrow, 
he  (Stewart)  wrote  out  a  check  for  the  amount  of  the  bill  and  gave 
it  to  Davies,  requesting  him  not  to  present  it  till  the  next  day.  It 
was  drawn  on  the  London  Joint  Stock  Bank,  Prince's  Street,  Lon- 
don, nnd  Davies,  having  left  the  goods,  returned  with  the  check 
to  his  employers.  It  was  presented  at  the  Rank,  in  London,  the 
morning,  when  it  was  dishonored  for  want  of  effects.  It  was 
also  proved  that,  although  the  prisoner  had  opened  an  account  at 
the  said  hank,  it  had  been  some  time  before  overdrawn,  and  several 
of  his  checks  had  been  subsequently  dishonored.1 

Jones,  Serjt.,  then   submitted  that   the  charge  of  larceny  against 

Kidman     Stewart     could     not     be     sustained.      The     shopman     parted, 
not   only    with    the    po  se   -ion    of    the   goods,    DUl    also    with    the    prop 

crtv  in  them.     Nor  was  any  false  representation  made  to  him  to  in 
to  do.     The  prisoner   requested   thai    the  check   might 
not  In-  presented  until  the  next  day;    hnt  it   was  presented  on  the 

i  Pari  of  tins  case  is  omitted. 


Sec.  4)  THE  TRESPASS.  471 

next  morning,  and  had  never  been  taken  to  the  banking  house  since. 
Although  there  were  no  funds  there  in  the  morning,  it  did  not  fol- 
low that  provision  might  not  have  been  made  for  the  check  in  the 
course  of  the  day.  This  is  like  the  case  of  R.  v.  Parker,  7  C. 
&  P.  825,  where  the  prisoner  was  charged  with  falsely  pretending 
that  a  postdated  check,  drawn  by  himself,  was  a  good  and  genuine 
order  for  i25,  whereby  he  obtained  a  watch  and  chain.  There  the 
prisoner  represented,  as  here,  that  he  had  an  account  with  the  bank, 
and  had  authority  to  draw  the  check,  both  which  were  proved  to  be 
false,  and  the  court  held  the  case  one  of  false  pretenses. 

Alderson,  B.  It  is  for  you  to  show  that  the  prisoner  had  rea- 
sonable ground  for  believing  that  the  check  would  be  paid.  The 
case  seems  to  me  to  approach  more  nearly  to  R.  v.  Small,  8  C.  & 
P.  46,  than  to  R.  v.  Parker.  In  the  former,  a  tradesman  was  induc- 
ed to  send  his  goods  by  a  servant  to  a  place  where  he  was  met 
by  the  prisoner,  who  induced  the  servant  to  give  him  the  goods  in 
exchange  for  a  counterfeit  crown  piece,  and  it  was  held  to  be  lar- 
ceny. If  the  owner  of  goods  parts  with  the  possession,  he  mean- 
ing to  part  also  with  the  property,  in  consequence  of  a  fraudulent 
representation  of  the  party  obtaining  them,  it  is  not  larceny,  but 
a  mere  cheat.  But  if  the  owner  does  not  mean  to  part  even  with 
the  possession,  except  in  a  certain  event,  which  does  not  happen, 
and  the  prisoner  causes  him  to  part  with  them  by  means  of  fraud, 
he  (the  owner)  still  not  meaning  to  part  with  the  property,  then 
the  case  is  one  of  larceny.  Here,  if  the  owner  had  himself  car- 
ried the  goods  and  parted  with  them,  as  the  servant  did,  no  doubt 
it  would  have  been  a  case  of  false  pretenses;  or,  if  the  servant  had 
had  a  general  authority  to  act,  it  would  have  been  the  same  as 
though  the  master  acted.  But  in  this  instance  he  had  but  a  limited 
authority,  which  he  chose  to  exceed.  I  am  of  opinion,  as  at  pres- 
ent advised,  that  if  the  prisoner  intended  to  get  possession  of  these 
goods  by  giving  a  piece  of  paper,  which  he  had  no  reasonable 
ground  to  believe  would  be  of  use  to  anybody,  and  that  the  servant 
had  received  positive  instructions  not  to  leave  the  articles  without 
cash  payment,  the  charge  of  larceny  is  made  out.2 

2  Accord:  Rex  v.  Longstreeth,  Moody,  137  (182G) ;  Rex  v.  Small.  8  Car.  & 
P.  46  (1837);  Reg.  v.  Sheppard.  9  Car.  &  P.  121  (1839).  See,  also,  Reg.  v. 
Simpson,  2  Cox,  C.  C.  235  (1847);  Sliipply  v.  People.  SG  N.  Y.  375,  40  Am. 
Rep.  551  (1881) ;  State  v.  Hall,  76  Iowa,  85,  40  N.  W.  107,  14  Am.  St.  Rep. 
204  (1888) ;  Commonwealth  v.  Eichelberger,  119  Pa.  254,  13  Atl.  422,  4  Am. 
St.  Rep.  642  (1888). 


472  LARCENY.  (Ch.  13 

REGINA  v.  WILSON. 

(Stafford  Assizes,  1S37.    8  Car.  &  P.  111.) 

Larceny.  The  prisoners  were  indicted  for  stealing  a  £5  note  and 
two  sovereigns,  the  property  of  Robert  Parker. 

Mr.  Robert  Parker  said:  "I  am  a  farmer.  I  was,  on  the  20th 
of  June,  walking  towards  Walsall,  when  I  saw  the  prisoner  Peter 
Wilson.  He  pointed  to  the  ground  and  said :  'There  is  a  purse.' 
He  picked  it  up.  I  said:  'We  had  better  have  it  cried,  as  some 
one  may  own  it.'  He  replied:  'Some  one  to  whom  it  does  not  be- 
long may  say  it  is  his,  and  get  it  from  us.'  We  walked  on,  and  I 
said:  'We  had  better  see  what  the  purse  contains.'  He  replied: 
'Not  here,  as  there  are  men  at  work  who  will  see  us.'  We  went 
about  20  yards  further,  and  the  prisoner  Wilson  opened  the  purse 
and  took  out  what  appeared  to  me  to  be  a  gold  watch  chain  and 
two  seals.  He  said  he  did  not  know  the  value  of  them,  but  there 
was  a  gentleman  on  the  other  side  of  the  road  who  could  probably 
tell  us.  This  was  the  prisoner  Ambrose  Martin.  The  things  were 
shown  to  him,  and  he  said  he  was  in  the  trade,  and  asked  how  we 
came  by  the  articles.  I  said  we  had  found  them.  The  prisoner 
Martin  then  said  it  was  a  very  prime  article,  and  worth  £14,  and 
that  we  should  divide  it  between  us,  and  he  added  that,  as  we  found 
it  on  the  road,  it  belonged  to  us,  and  no  one  else.  The  prisoner 
Wilson  said  he  would  take  the  things  to  his  master;  but  the  other 
prisoner  said  he  had  no  right  to  do  so,  and  he  also  said  that  if  1 
would  buy  the  other  man's  share  he  would  give  me  £18  for  the 
articles,  and  get  a  good  profit  for  himself  besides.  He  added  that 
he  was  the  brother  of  Mr.  Dutton,  the  watchmaker,  whom  I  knew. 
The  prisoner  Wilson  had  gone  on  a  little  way,  when  he  was  called 
back  by  the  other  prisoner,  who  asked  him  if  he  would  take  £7 
for  his  share.  This  he  agreed  to  do.  I  gave  him  a  £5  note  and  two 
sovereigns,  and  took  the  chain  and  seals." 

Evidence  was  given  to  show  that  the  prisoners  were  connected 
together,  and  that  the  supposed  valuable  articles  were  worth  only 
a   few   shillings. 

COLERIDGE,  J.     Is  this  a  larceny? 

Beadon,  for  the  prosecution,  cited  the  case  of  Rex  v.  Moore,  2 
East,  P.  C.  679. 

COLERIDGE,  J-  In  that  case  nine  of  the  judges  thought  that 
the  money  charged  to  have  been  stolen  was  given  as  a  pledge,  so 
that  the  possession  of  it  only  was  parted  With  by  the  prosecutor, 
and  the  property  not.  In  this  case  the  prosecutor  intended  to  part 
with  tin-  money  for  good  and  all,  and  to  have  the  articles.  If  the 
party  meant  to  part  with  the  property  in  the  money,  as  well  as  the 

i    of    it,    1    a '    Opinion    that    it    is    no    larceny.      Here    the 

pi-  ecutor  meant   t<>  part   with   his  money    for  ever. 


Sec.  4)  THE  TRESPASS.  473 

Beadon  cited  the  case  of  Rex  v.  Robson,  R.  &  R.  413. 

Coleridge,  J.  The  party  there  had  only  the  possession  of  the 
money  given  to  him  as  a  stakeholder.  When  this  prosecutor  parted 
with  his  £7,  he  never  intended  to  have  it  back  again,  but  meant 
to  sell  the  chain  and  seals  for  himself.  The  prisoners  must  be 
acquitted. 

Verdict — Not  guilty. 


REX  v.  NICHOLSON. 

(Court  for  Crown  Cases  Reserved,  1794.    2  Leach,  C.  C.  [4th  Ed.]  610.) 

Nicholson  and  others  were  indicted  for  stealing  two  bank  post 
bills,  the  one  of  £20  the  other  of  £15,  and  seven  guineas,  the  prop- 
erty of  William  Cartwright.  It  appeared  that  the  prisoner  Nichol- 
son introduced  himself  to  the  prosecutor  without  any  previous  ac- 
quaintance, at  his  apartments  in  the  Charter  House,  under  pretense 
of  inquiring  what  the  rules  of  the  charity  were.  He  discovered  that 
the  prosecutor  had  some  money,  by  his  desk  having  been  opened 
during  the  conversation.  Nicholson  desired  him  to  walk  with  him, 
and  they  went  to  a  public  house,  having  been  joined  by  the  prisoner 
Chappel.  Some  liquor  was  called  for,  when  the  other  prisoner,  Jones, 
came  into  the  room,  and  said  he  had  come  from  Coventry  to  receive 
£1,400,  and  produced  a  quantity  of  notes.  Chappel  said  to  him: 
"I  suppose  that  you  think  that  no  one  has  any  money  but  you." 
Jones  answered:  "I'll  lay  £10  that  neither  of  you  can  show  £40  in 
three  hours."  They  all  went  out,  Nicholson  and  Chappel  saying  they 
should'  go  to  the  Spotted  Horse,  and  both  asked  the  prosecutor  if 
he  could  show  £40.  He  answered  he  believed  he  could.  Nicholson 
accompanied  the  prosecutor  to  his  room  at  the  Charter  House,  where 
the  prosecutor  took  out  of  his  desk  the  two  post  bills  in  question  and 
five  guineas.  Nicholson  then  advised  him  to  take  a  guinea  or  two 
more,  and  he  accordingly  took  two  more.  They  then  went  to  the 
Spotted  Horse,  where  Jones  and  Chappel  were  in  a  back  room.  Jones 
put  down  a  £10  note  for  each  who  could  show  £40.  The  prosecutor 
showed  his  £40  by  laying  down  the  notes  and  guineas,  but  did  not 
recollect  whether  he  took  up  the  £10  given  to  him.  Jones  then  wrote 
four  letters  with  chalk  on  the  table,  and  going  to  the  end  of  the 
room  turned  his  back,  and  said  that  he  would  bet  them  a  guinea 
apiece  that  he  would  name  another  letter  which  should  be  made  and 
a  bason  put  over  it.  Another  letter  was  made  and  covered  with  a 
bason.  Jones  guessed  wrong,  and  the  others  won  a  guinea  each. 
Chappel  and  Nicholson  then  said:  "We  may  as  well  have  some  of 
Jones'  money,  for  he  is  sure  to  lose;  and  we  may  as  well  make  it 
more,  for  we  are  sure  to  win.  The  prosecutor  staked  his  two  notes 
and  the  seven  guineas.     Jones  then  guessed   right;    and,   the  notes 


474  LARCENY.  (Ch.   13 

lying  on  the  table,  Jones  swept  them  all  off,  and  went  to  the  door 
of  the  room,  the  other  prisoners  sitting  still.  A  constable  immediately 
came  in  and  apprehended  the  prisoners.  The  prosecutor  said  on  cross- 
examination,  that  he  did  not  know  whether  the  £10  note  given  to 
him  by  Jones  on  showing  £40  were  a  real  one  or  not;  that  having 
won  the  first  wager  by  guessing  the  letter,  if  the  matter  had  ended 
then,  he  should  have  kept  the  guinea;  that  he  did  not  object  to 
Jones  taking  his  £40  when  he  lost,  and  would  have  taken  the  £40 
if  he  had  won.  The  officers  who  had  taken  the  prisoners,  having 
searched  them,  found  a  great  many  pieces  of  thin  paper  upon  them. 
having  numbers,  such  as  100,  50,  etc.,  something  in  the  manner  of 
bank  notes,  the  bodies  of  the  notes  being  advertisements  of  different 
kinds.  No  good  notes  were  found  upon  them,  but  about  eight  guin- 
eas in  cash,  a  sum  sufficient  to  have  paid  £40  if  Jones  had  lost  the 
wager.  A  lump  of  paper  was  put  into  the  prosecutor's  hands  by 
Jones  when  the  officers  came  in,  which  was  afterward  found  to  con- 
tain the  two  genuine  post  bills  mentioned  in  the  indictment.1 

Knowlys,  for  the  prisoner,  submitted  to  the  court  that  there  was 
a  material  distinction  between  this  case  and  the  common  cases  where 
money  is  obtained  by  means  of  ring  dropping;  that  in  ring  dropping 
cases  the  property  obtained,  though  voluntarily  on  the  part  of  the 
prosecutor,  was  not  by  an  absolute,  but  conditional,  delivery,  so 
that,  until  something  else  took  place,  the  property  was  not  intended 
to  be  parted  with,  and  therefore  a  constructive  possession  still  re- 
mained in  the  prosecutor.  But  in  this  case  the  money  was  lost,  and 
the  prosecutor  really  supposed  it  to  be  so,  and  parted  with  it  abso- 
lutely, without  anything  being  to  be  afterwards  done  by  the  party, 
or  without  any  expectation  of  its  being  to  be  returned  to  him  again 
in  any  event  whatever. 

The  Court  was  of  opinion  that  it  was  for  the  jury  to  judge,  from 
all  the  circumstances  of  the  case,  whether  the  prisoners  had  not  a 
dominion  over  the  property  of  Cartwright  from  the  very  beginning 
of  the  transaction,  and  whether  all  that  followed  were  not  merely 
mi  .ins  made  use  of  to  get  his  money  into  their  possession. 

The  jury  found  the  prisoners  guilty,  and  that  it  was  not  a  gaming 
transaction,  but  a  preconcerted  scheme  in  all  the  prisoners  to  get  from 
the  prosecutor  the  notes  and  money;  but  the  judgment  was  respited, 
and  the  case  submitted  to  the  consideration  of  the  twelve  judges. 

In  Hilary  Term,  1794,  all  the  judges  held  the  conviction  wrong. 
Eqt  that  in  this  case  the  possession  itself,  as  well  as  the  property, 
had  been  parted  with  by  the  prosecutor,  under  an  idea  that  it  had  been 
fairly  won;  and  the  prisoners  received  a  free  pardon,  and  were  dis- 
charged  previous  to  the  April  Session,  170  I.2 

1  The  facta  are  printed  from  2  East,  P.  C.  669. 
mpare  Reg.  v.  Riley,  i  Oox,  0.  O.  98  (1844). 


Sec.  4)  THE  TRESPASS.  475 

REX  v.  ROBSON. 
(Court  for  Crown  Cases  Reserved,  1820.     Russ.  &  R.  413.) 

The  prisoners  were  tried  and  convicted  before  Mr.  Justice  Bayley, 
at  the  Lent  Assizes  for  the  town  and  county  of  Newcastle-upon- 
Tyne,  in  the  year  1820,  of  stealing  from  the  person  of  John  Young- 
er 20  notes  for  one  guinea  each. 

The  facts  were  as  follows:  Robson,  by  pretending  to  find  a  six- 
pence in  a  fair,  decoyed  Younger  to  a  public  house.  They  were 
then  joined  by  the  three  other  prisoners,  and  after  a  little  time  Gill, 
pretending  to  be  flush  of  money,  began  to  play  with  Fewster,  at 
guessing  at  a  halfpenny  Fewster  hid  under  a  pewter  pot.  Gill  was 
to  guess  three  times  right  out  of  four.  After  losing  twice,  Gill  offered 
a  wager  of  a  pound  that  none  of  them  could  produce  £10.  Fewster 
took  the  bet,  and  advised  Younger  to  do  the  same.  Younger  had 
not  money  enough  about  him,  but  went  and  borrowed  20  guinea 
notes  of  a  friend,  and  then  it  was  conceded  he  had  won.  Gill  then 
offered  Fewster  to  bet  him  £100,  or  £50,  or  any  other  sum,  that  he 
guessed  the  halfpenny  right  three  times  out  of  four,  and  Fewster 
betted  him  £40.  Gill  guessed  wrong  once  out  of  the  four  times,  and 
then  went  out.  In  his  absence,  Fewster  advised  Younger  to  go 
halves  in  the  bet,  as  he  was  sure  to  win,  and  after  some  persuasion 
he  consented;  and  on  Gill's  return  Younger  handed  the  20  guinea 
notes  to  Gill,  who  passed  them  on  to  Robson,  who  was  to  be  stake- 
holder. Gill  then  pretended  to  guess  the  remaining  three  times, 
and,  being  right  in  each,  Robson  gave  him  the  stakes  and  he  went 
away. 

The  learned  judge  told  the  jury  that  if  they  thought,  when  Gill 
took  the  notes  from  Younger  and  passed  them  to  Robson,  there 
was  a  plan  and  concert  between  the  prisoners  that  Younger  should 
never  have  his  notes  back,  but  that  they  should  keep  them  for  them- 
selves, under  the  false  color  and  pretense  that  Gill  won  his  bet,  he 
was  of  opinion  that  in  point  of  law  it  was  a  felonious  taking  by  all. 

The  jury  were  of  that  opinion;  but,  as  this  case  came  very  near 
to  Rex  v.  Nicholson,  2  East,  P.  C.  669,  the  learned  judge  thought 
proper  to  submit  it  to  the  consideration  of  the  judges,  although  his 
lordship  was  of  opinion  that  it  was   distinguishable  from  that  case. 

The  distinction  the  learned  judge  took  between  the  cases  was 
this:  That,  at  the  time  Gill  and  Robson  took  Younger's  notes. 
Younger  parted  with  the  possession  only,  not  with  the  property, 
and  that  the  property  was  only  to  pass  eventually  if  Gill  really  won 
the  wager.  Younger  expected  to  have  been  paid,  had  Gill  guessed 
wrong:. 


476 


LARCENY. 


(Ch.  13 


In  Easter  Term,  1820,  ten  of  the  judges  met  and  considered  this 
case.  They  held  the  conviction  right,  because  at  the  time  of  the 
taking  the  prosecutor  parted  only  with  the  possession  of  the  money.1 


STATE  v.  SKILBRICK. 

(Supreme  Court  of  Washington,  1901.    25  Wash.  555,  66  Pac.  53,  87  Am.  St. 

Rep.  784.) 

Sam  Skilbrick  was  convicted  of  larceny,  and  he  appeals. 

Mount,  J.2  There  can  be  no  other  conclusion  from  the  evidence 
in  the  case  than  that  Hilger,  Sampson,  and  the  appellant,  Skilbrick, 
were  confederates,  that  the  game  was  a  dishonest  game,  that  Daley 
had  no  chance  of  winning,  that  the  confederates  knew  what  Daley 
had  in  his  hand,  and  that  there  was  no  element  of  chance  for  them 
in  the  game.  Daley  was  entirely  ignorant  of  the  character  of  the 
game.  He  testified  that  he  believed  it  to  be  an  honest  game  of  poker. 
When  Daley  placed  his  money  on  the  hazard  of  the  cards,  he  did 
not  intend  to  part  with  the  title,  unless  it  was  fairly  won  by  his  oppo- 
nents. When  Sampson,  Hilger,  and  Skilbrick  knew  before  the  cards 
were  dealt,  or  afterwards  by  discovery,  that  Daley  was  to  lose  his 
money  through  their  manipulations,  and  when  they  induced  him  into 
the  game,  and  one  of  them,  by  telling  him  he  had  the  best  hand,  per- 
suaded him  to  place  his  money  on  the  table,  for  the  purpose  of  ob- 
taining his  money,  as  they  evidently  did  in  this  case,  it  was  as  much 
larceny  as  though  they  had  induced  him  to  lay  his  money  on  the 
table  for  them  to  examine,  and  then  had  taken  it  by  some  sleight 
of  hand  performance,  which  Daley  did  not  understand,  or  by  force 
under  his  protest.  The  object  of  the  conspirators  was  to  get  the 
money.  That  they  got  possession  of  it  through  a  trick  or  through 
fraud,  by  leading  Daley  to  believe  he  would  stand  an  equal  chance 
of  winning,  when  he  had  none,  or  that  they  got  it  by  taking  it  with- 
out his  consent,  makes  no  difference.  The  crime  would  be  larceny 
in  either  event.  Miller  v.  Commonwealth,  78  Ky.  15,  39  Am.  Rep. 
194;  People  v.  Rae,  G6  Cal.  423,  6  Pac.  1,  5G  Am.  Rep.  102;  Loom- 
is  v.  People,  67  N.  Y.  322,  23  Am.  Rep.  123;  People  v.  Shaw,  57 
Mich.  403,  24  N.  W.  121,  58  Am.  Rep.  372. 

The  cause  is  therefore  affirmed. 

R  i.  a  vis,  C.  J.,  and  Fullerton,  Andkrs,  Hadley,  and  WHITE,  JJ. 
concur. 


i Accord:     Minor  v.  Commonwealth,  78  Ky.  15,  "0  Am.  Rep.  194  (1879)5 

v.   Buckmaster,  16  <'<>\\  0.  0.  889  nss7).      Bee,  :iis.».  Crum  v.  State, 

1  is   i,,,].  401,    it   N.    E.   833   (1897);    Stinaon   v.   People,   48   in.  897  (1867); 

Loomla  v.  People,  <n  N.  v.  822,  28  Am.  Rep.  128  U^tgj;    Joimsuu  v.  State, 

Tr,   Ark.    127,  88   S.    W.   905   (1905). 

2  Only  extract!  from  tin-  opinion  are  printed. 


Sec  4)  THE  TRESPASS.  477 

REGINA  v.  WILLIAMS. 
OVorcester  Assizes,  1857.     7  Cox,  C.  C.  855.) 

The  prisoner  was  indicted  for  stealing  one  shilling,  the  property 
of  John  Tippin,  at  Evesham. 

Powell  for  the  prosecution. 

On  the  part  of  the  prosecution  a  witness  was  called,  who  deposed 
as  follows:  "I  am  shopman  to  the  prosecutor.  On  Friday,  the 
10th  of  July,  the  prisoner  came  to  the  shop.  He  asked  for  half 
an  ounce  of  tobacco.  I  served  him  with  it.  He  pitched  down  half  a 
crown  upon  the  counter.  I  put  two  shillings  down  upon  the  counter, 
and  whilst  I  was  counting  the  halfpence  out  of  the  drawer,  which 
was  partly  open,  the  prisoner  picked  up  the  two  shillings  off  the 
counter,  and,  as  I  thought,  threw  them  into  the  till,  and  asked  for 
four  sixpences  instead  of  them.  I  gave  him  one  shilling  and  two 
sixpences.  I  also  gave  him  fourpence  halfpenny ;  the  tobacco  com- 
ing to  three  halfpence.  I  suspected  that  something  was  wrong,  but 
did  not  like  to  open  the  drawer  whilst  the  prisoner  was  there;  but 
immediately  he  had  left  the  shop  I  counted  the  money  in  the  drawer. 
Before  the  prisoner  came  into  the  shop,  I  had  fourteen  shillings  and 
fourpence  in  silver  in  the  drawer.  I  put  the  half  crown  which  I 
received  from  the  prisoner  in,  which  would  make  sixteen  shillings 
and  tenpence,  and,  after  taking  out  the  two  shillings  for  the  prison- 
er, I  ought  to  have  had  fourteen  shillings  and  tenpence,  but  on 
counting  my  money  I  found  that  I  had  only  thirteen  shillings  and  ten- 
pence.  After  he  had  thrown  the  two  shillings  into  the  drawer,  as 
I  thought,  and  as  he  drew  his  hand  away,  I  saw  his  thumb  bent  close 
to  the  palm  of  his  hand.  I  saw  him  put  his  hand  into  his  pocket. 
This  made  me  suspect  that  something  was  wrong." 

Powell.  The  charge  is  made  out,  for  the  possession  of  the  money 
was  never  parted  with.  It  was  only  put  down  upon  the  counter, 
for  the  purpose  of  being  afterwards  handed  over  to  the  prisoner, 
and  he  had  no  right  to  take  it  up.  But,  even  if  that  be  not  so,  the 
prisoner  ought  still  to  be  convicted,  for  the  case  comes  within  a  class 
of  offenses  which  have  always  been  held  to  amount  to  larceny.  The 
prisoner  has  obtained  the  money  by  means  of  a  trick.  R.  v.  Oliver, 
4  Taunt.  274,  is  in  point.1 

Martin,  B.  No;  the  decision  in  the  case  you  refer  to  was  quite 
right,  but  it  does  not  apply.  The  case  against  the  prisoner  here  is 
that  he  pretended  that  he  had  returned  the  whole  of  the  money, 
when  in  reality  he  had  only  returned  one  shilling.  He  cannot,  there- 
fore, be  convicted  upon  this  indictment,  though  it  might  be  other- 
wise if  he  had  been  indicted  for  obtaining  the  shilling  by  false  pre- 
tenses. 

Verdict— Not  Guilty. 

i  Part  of  this  case  is  omitted. 


478  LARCENY.  (Ch.   13 

REGINA  v.  McGRATH. 
(Court  for  Crown  Cases  Reserved,  1869.     11  Cox,  C.  C.  347.) 

The  witness,  Jane  Powell,  said:  "I  had  not  bid  for  it  [at  auction], 
nor  made  any  sign.  I  told  the  prisoner  I  had  not  bid.  He  said  I 
did.  I  said  I  did  not,  and  would  not  pay  for  it.  I  said  this  several 
times.  I  went  to  go  out.  The  prisoner  said  I  had  bid  for  it,  and  must 
pay  before  I  would  be  allowed  to  go  out.  I  was  then  prevented  go- 
ing out  by  the  man  who  had  said  I  had  bid  for  it.  He  stood  between 
me  and  the  door,  and  said  I  must  pay  for  it  I  wanted  to  go  out, 
and  the  man  prevented  me.  I  then  paid  26s.  to  the  prisoner.  I 
paid  the  money  because  I  was  afraid.  The  piece  of  cloth  was  then 
given  to  me,  and  I  took  it  away."  x 

Brett,  J.  I  also  have  had  doubts  whether  there,  was  sufficient  evi- 
dence to  support  a  conviction  in  this  case.  If  the  case  had  rested 
on  the  principle  of  the  money  having  been  obtained  by  a  trick,  I  should 
have  thought  that  there  was  not.  The  case,  if  so  put,  would  have  fail- 
ed in  this:  That  if  the  woman  by  the  trick  was  induced  to  part 
with  her  money  she  did  so  willingly,  and  in  this  case  with  intent  that 
it  should  be  taken  away  by  the  prisoner.  But,  upon  consideration, 
I  think  that  this  conviction  may  be  supported  on  the  ground  that 
the  woman  parted  with  her  money  against  her  will,  by  reason  of  un- 
lawful violence  used  and  threatened  by  the  prisoner.  I  had  doubts 
whether  the  threat  of  imprisonment  was  sufficient ;  but  upon  con- 
sideration I  think  that  a  threat  of  immediate  personal  restraint,  made 
by  a  person  present  and  having  power  to  carry  such  threat  into  ex- 
ecution, may  reasonably  be  said  to  cause  a  person  to  do  what  this 
woman  did  against  her  will,  and  that  is  sufficient  to  make  the  giving 
up  of  property  such  a  taking  of  property  by  a  prisoner  as  to  consti- 
tute the  crime  of  larceny. 

Conviction  affirmed.2 


REGINA  v.  MIDDLETON. 
(Court  for  Crown  Cases  Reserved,  1873.    L.  R.  2  C.  C.  38.) 

Case  stated  by  the  Common  Serjeant  of  London. 

At    the   session    of   the   Central    Criminal    Court    held    on    Monday, 
the  23d  of  September,   1*72,  George  Middleton  was  tried   for   felo 
niously  stealing  certain  money  to  the  amount  of  £8.  16s.  lOd.  of  the 
moneys  of  the  Po  •  i   <  General. 

The  ownership  of  the  money  was  laid  in  other  counts  in  the  queen 
and  in  the  mistress  of  the  local  posl  office. 

i  only  extracts  from  tins  case  are  printed. 
Accord:     Reg.  v.  Bazell,  U  Cox,  0.  0.  597  (1870);    Reg.  v.  Lovell,  8  Q.  B. 
D.   185  (1881). 


#•    Hi    led- 


Sec.  4)  THE  TRESPASS.  479 

It  was  proved  by  the  evidence  that  the  prisoner  was  a  depositor 
in  a  post  office  savings  bank,  in  which  a  sum  of  lis.  stood  to  his 
credit. 

In  accordance  with  the  practice  of  the  bank,  he  duly  gave  no- 
tice to  withdraw  10s.,  stating  in  such  notice  the  number  of  his 
depositor's  book,  the  name  of  the  post  office,  and  the  amount  to  be 
withdrawn. 

A  warrant  for  10s.  was  duly  issued  to  the  prisoner,  and  a  letter 
of  advice  was  duly  sent  to  the  post  office  at  Notting  Hill  to  pay  the 
prisoner  10s.  He  presented  himself  at  that  post  office  and  handed 
in  his  depositor's  book  and  the  warrant  to  the  clerk,  who,  instead 
of  referring  to  the  proper  letter  of  advice  for  10s.,  referred  by  mis- 
take to  another  letter  of  advice  for  £8.  16s.  10d.,  and  placed  upon 
the  counter  a  £5  note,  three  sovereigns,  a  half  sovereign,  and  silver 
and  copper,  amounting  altogether  to  £8.  16s.  lOd.  The  clerk  en- 
tered the  amount  paid,  viz.,  £8.  16s.  lOd.  in  the  prisoner's  deposi- 
tor's book  and  stamped  it,  and  the  prisoner  took  up  the  money  and 
went  away. 

The  mistake  was  afterwards  discovered,  and  the  prisoner  was 
brought  back,  and,  upon  being  asked  for  his  depositor's  book,  said 
he  had  burnt  it.  Other  evidence  of  the  prisoner  having  had  the 
money  was  given. 

It  was  objected  by  counsel  for  the  prisoner  that  there  was  no 
larceny,  because  the  clerk  parted  with  the  property  and  intended  to 
do  so,  and  because  the  prisoner  did  not  get  possession  by  any  fraud 
or  trick. 

The  jury  found  that  the  prisoner  had  the  animus  furandi  at  the 
moment  of  taking  the  money  from  the  counter,  and  that  he  knew 
the  money  to  be  the  money  of  the  Postmaster  General  when  he  took 
it  up. 

A  verdict  of  guilty  was  recorded,  and  the  learned  Common  Serjeant 
reserved  for  the  opinion  of  the  Court  for  Crown  Cases  Reserved 
the  question  whether  under  the  circumstances  above  disclosed,  the 
prisoner  was  properly  found  guilty  of  larceny. 

November  23,  1872.  The  court  [Kelly,  C.  B.,  Martin,  B.,  and 
Brett,  Grove,  and  Quain,  J  J.]  reserved  the  case  for  the  opinion 
of  all  the  judges. 

Bovill,  C.  J.,  read  the  judgment  of  Cockburn,  C.  J.,  and  Black- 
burn, Mellor,  Lush,  Grove,  Denman,  and  Archibald,  JJ.,  as  fol- 
lows :* 

In  the  present  case,  the  finding  of  the  jury  that  the  prisoner, 
at  the  moment  of  taking  the  money,  had  the  animus  furandi  and 
was  aware  of  the  mistake,  puts  an  end  to  all  objection  arising  from 
the  fact  that  the  clerk  meant  to  part  with  the  possession  of  the  money. 

i  Part  of  the  opinion  is  omitted. 


480  LARCENY.  (Ch.    13 

On  the  second  question,  namely,  whether,  assuming  that  the  clerk- 
was  to  be  considered  as  having  all  the  authority  of  the  owner,  the 
intention  of  the  clerk  (such  as  it  was)  to  part  with  the  property 
prevents  this  from  being  larceny,  there  is  more  difficulty,  and  there 
is,  in  fact,  a  serious  difference  of  opinion,  though  the^  majority, 
as  already  stated,  think  the  conviction  right.  The  reasons  which 
lead  us  to  this  conclusion  are  as  follows :  At  common  law  the  prop- 
erty in  personal  goods  passes  by  a  bargain  and  sale  for  considera- 
tion, or  a  gift  of  them  accompanied  by  delivery;  and  it  is  clear, 
from  the  very  nature  of  the  thing,  that  an  intention  to  pass  the 
property  is  essential  both  to  a  sale  and  to  a  gift.  But  it  is  not  at 
all  true  that  an  intention  to  pass  the  property,  even  though  accom- 
panied by  a  delivery,  is  of  itself  equivalent  to  either  a  sale  or  a  gift. 
We  will  presently  explain  more  fully  what  we  mean,  and  how  this 
is  material.  Now,  it  is  established  that  where  a  bargain  between 
the  owner  of  the  chattel  has  been  made  with  another,  by  which  the 
property  is  transferred  to  the  other,  the  property  actually  passes, 
though  the  bargain  has  been  induced  by  fraud.  The  law  is  thus 
stated  in  the  judgment  of  the  Exchequer  Chamber,  in  Clough  v. 
London  &  Northwestern  Ry.  Co.,  L.  R.  7  Ex.  2G,  at  pages  34,  35, 
where  it  is  said:  "We  agree  completely  with  what  is  stated  by  all 
the  judges  below  that  the  property  in  the  goods  passed  from  the 
London  Pianoforte  Company  to  Adams  by  the  contract  of  sale. 
The  fact  that  the  contract  was  induced  by  fraud  did  not  render  the 
contract  void,  or  prevent  the  property  from  passing,  but  merely 
gave  the  party  defrauded  a  right,  on  discovering  the  fraud,  to  elect 
whether  he  would  continue  to  treat  the  contract  as  binding,  or 
would  disaffirm  the  contract  and  resume  his  property.  *  *  * 
We  think  that,  so  long  as  he  has  made  no  election,  he  retains  the 
right  to  determine  it  either  way,  subject  to  this:  That  if.  in  the 
interval,  whilst  he  is  deliberating,  an  innocent  third  party  has  ac- 
quired an  interest  in  the  property,  or  if,  in  consequence  of  his  de- 
lay, the  position  even  of  the  wrongdoer  is  affected,  it  will  preclude 
him  from  exercising  his  right  to  rescind." 

It  follows  obviously  from  this  that  no  conversion  or  dealing  with 
the  goods,  before  the  election  is  determined,  can  amount  to  a  steal- 
ing of  the  vendor's  goods;  for  they  had  become  the  goods  of  the 
purchaser,  and  still  remained  so  when  the  supposed  act  of  theft 
was  committed.  There  are,  accordingly,  many  cases,  of  which  the 
recenl  i  Reg.  v.  Prince,  I..  R.  1  C.  C.  150,  which  decide 
that  in  such  a  ca  e  the  guilty  party  must  be  indicted  for  obtaining 
the  goods  by  false  pretenses,  and  cannot  be  convicted  of  larceny. 
In  that  case,  however,  the  money  was  paid  to  the  holder  of  a  forged 
payable  t"  hearer,  and  therefore  vested  in  the  holder,  subject 
to  the  right  <>f  the  hank  to  divest  the  property. 

In   the   pre  enl    case,    the   property   still    remains   that   of   the   Post- 


Sec.  4)  THE  TRESPASS.  4S1 

master  General,  and  never  did  vest  in  the  prisoner  at  all.  There  was 
no  contract  to  render  it  his  which  required  to  be  rescinded.  There 
was  no  gift  of  it  to  him,  for  there  was  no  intention  to  give  it  to 
him  or  to  any  one.  It  was  simply  a  handing  it  over  by  a  pure 
mistake,  and  no  property  passed.  As  this  was  money,  we  cannot 
test  the  case  by  seeing  whether  an  innocent  purchaser  could  have 
held  the  property.  But  let  us  suppose  that  a  purchaser  of  beans 
goes  to  the  warehouse  of  a  merchant  with  a  genuine  order  for  so 
many  bushels  of  beans,  to  be  selected  from  the  bulk  and  so  become 
the  property  of  the  vendee,  and  that  by  some  strange  blunder  the 
merchant  delivers  to  him  an  equal  bulk  of  coffee.  If  that  coffee 
was  sold  (not  in  the  market  overt)  by  the  recipient  to  a  third  per- 
son, could  he  retain  it  against  the  merchant,  on  the  ground  that  he 
had  bought  it  from  one  who  had  the  property  in  the  coffee,  though 
subject  to  be  divested?  We  do  not  remember  any  case  in  which  such 
a  point  has  arisen,  but  surely  there  can  be  no  doubt  he  could  not; 
and  that  on  the  principle  enunciated  by  Lord  Abinger,  in  Chandler 
v.  Hopkins,  4  M.  &  W.,  at  page  404,  when  he  says:  "If  a  man  offers 
to  buy  peas  of  another,  and  he  sends  him  beans,  he  does  not  perform 
his  contract,  but  that  it  is  not  a  warranty.  There  is  no  warranty 
that  he  should  sell  him  peas.  The  contract  is  to  sell  peas,  and  if  he 
sends  him  anything  else  in  their  stead  it  is  a  nonperformance  of  it." 

We  admit  that  the  case  is  undistinguishable  from  the  one,  supposed 
in  the  argument,  of  a  person  handing  to  a  cabman  a  sovereign  by  mis- 
take for  a  shilling;  but,  after  carefully  weighing  the  opinions  to  the 
contrary,  we  are  decidedly  of  the  opinion  that  the  property  in  the 
sovereign  would  not  vest  in  the  cabman,  and  that  the  question  wheth- 
er the  cabman  was  guilty  of  larceny  or  not  would  depend  upon  this : 
Whether  he,  at  the  time  he  took  the  sovereign,  was  aware  of  the  mis- 
take, and  had  then  the  guilty  intent,  the  animus  furandi. 

But  it  is  further  urged  that  if  the  owner,  having  power  to  dis- 
pose of  the  property,  intended  to  part  with  it,  that  prevents  the  crime 
from  being  that  of  larceny,  though  the  intention  was  inoperative, 
and  no  property  passed.  In  almost  all  the  cases  on  the  subject,  the 
property  had  actually  passed,  or  at  least  the  court  thought  it  had 
passed;  but  the  two  cases,  Rex  v.  Adams,  2  Russell  on  Crimes  (4th 
Ed.)  200,  and  Rex  v.  Atkinson,  2  East,  P.  C.  673,  appear  to  have 
been  decided  on  the  ground  that  an  intention  to  pass  the  property, 
though  inoperative,  and  known  by  the  prisoner  to  be  inoperative,  was 
enough  to  prevent  the  crime  from  being  that  of  larceny.  But  we 
are  unable  to  perceive  or  understand  on  what  principles  the  cases 
can  be  supported  if  Rex  v.  Davenport,  2  Russell  on  Crimes  (4th  Ed.) 
201,  and  the  others  involving  the  same  principle,  are  law ;  and  though, 
if  a  long  series  of  cases  had  so  decided,  we  should  think  we  were 
bound  by  them,  yet  we  think  that  in  a  court  such  as  this,  which  is  in 
effect  a  court  of  error,  we  ought  not  to  feel  bound  by  two  cases 
Mik.Cr.L.— 31 


482  LARCENY.  (Ch.    13 

which,  as  far  as  we  can  perceive,  stand  alone,  and  seem  to  us  con- 
trary both  to  principle  and  justice.2 

Cleasby,  B.3  The  cases  establish  that,  where  there  is  a  complete 
dealing  or  transaction  between  the  parties  for  the  purpose  of  passing 
the  property,  and  so  the  possession  parted  with,  there  is  no  taking, 
and  the  case  is  out  of  the  category  of  larceny. 

Considering  what  the  penalty  was,  there  was  nothing  unreason- 
able or  contrary  to  the  spirit  of  our  laws  in  drawing  a  dividing  line, 
and  holding  that,  whenever  the  owner  of  property  is  a  party  to  such 
a  transaction  as  I  have  mentioned,  such  serious  consequences  were 
not  to  depend  upon  the  conclusion  which  might  be  arrived  at  as  to 
the  precise  terms  of  the  transaction,  which  might  be  complicated  and 
uncertain,  and  difficult  to  ascertain.  And  this  agrees  with  Hawkins' 
opinion  (Pleas  of  the  Crown,  book  I,  c.  33,  §  3),  where  (in  dealing 
with  the  question  of  what  shall  be  a  felonious  taking),  after  pointing 
out  that,  unless  there  has  been  a  trespass  in  taking  goods,  there  can 
be  no  felony  in  carrying  them  away,  he  adds:  "And  herein  our  law 
differs  from  the  civil,  which,  having  no  capital  punishment  for  bare 
thefts,  deals  with  offenses  of  this  kind  (that  is,  fraudulent  appropria- 
tion of  things  not  taken)  as  in  strict  justice  most  certainly  it  may; 
but  our  law,  which  punishes  all  theft  with  death  if  the  thing  stolen 
be  above  the  value  of  twelve  pence,  and  with  corporal  punishment  if 
under,  rather  chooses  to  deal  with  them  as  civil,  than  criminal,  of- 
fenses." 

1  believe  the  rule  is  as  I  have  stated,  and  that  it  is  not  limited  to 
cases  in  which  the  property  in  the  chattel  actually  passes  by  virtue 
of  the  transaction.  I  have  not  seen  that  limitation  put  upon  it  in  any 
text-book  on  the  Criminal  Law;  and  there  are,  unless  I  am  mis- 
taken, many  authorities  against  it.  The  cases  show,  no  doubt,  be- 
yond question,  that  where  the  transaction  is  of  such  a  nature  that 
the  property  in  the  chattel  actually  passes  (though  subject  to  be  re- 
sumed by  reason  of  fraud  or  trick),  there  is  no  taking,  and  there- 
fore no  larceny.  But  they  do  not  show  the  converse,  viz.,  that  when 
vhe  property  does  not  pass  there  is  larceny.  On  the  contrary,  they 
appear  to  me  to  show  that  where  there  is  an  intention  to  part  with 
the  property  along  with  the  possession,  though  the  fraud  is  of  such 

2  Boviii,  0.  J.,  ■•Hid  Keating,  J.,  held  the  prisoner  guilty  of  larceny  on  the 
ground  thai  the  property  In  the  money  was  in  the  erown  <>r  the  Postmaster 
General;  thai  neither  the  postmasters  nor  clerks  had  any  power  or  authority 
to  pari  with  either  the  property  or  possession  of  the  moneys  so  <iej>ositod, 
or  any  pari  of  them,  to  any  person,  excepl  upon  the  Bpeclal  authority  of 
the  Postmaster  General;  thai  therefore  In  this  ruse  neither  the  clerk  nor 
postmistress  had  any  authority  to  pari   with  the  moneys  which   the  clerk 

i  upon  the  counter;    and  hence  the  case  came  within  the  principle  of 
Reg,  v.  Stewart,  supra. 

Kelly,  0.  B.,  delivered  a  concurring  opinion,  and  Plgott,  i'..,  concurred  in 
in,  opinion,  on  the  ground  thai  the  mistaken  ad  of  the  clerk  In  placing  the 
monej  on  the  counter  did  nol  Invesl  the  prisoner  with  possession,  and  that 
i      acl  of  taking  it  up  was  trespassory. 

a  Pari    of    this    opinion    is   omitted. 


Sec.  4)  THE  TRESPASS.  483 

a  nature  as  to  prevent  that  intention  from  operating,  there  is  still  no 
larceny.  This  seems  so  clearly  to  follow,  from  the  cardinal  rule 
that  there  must  be  a  taking  against  the  will  of  the  owner,  that  the 
cases  rather  assume  that  the  intention  to  transfer  the  property  governs 
the  case  than  expressly  decide  it.  For  how  can  there  be  a  taking 
against  the  will  of  the  owner,  where  the  owner  hands  over  the  pos- 
session, intending  by  doing  so  to  part  with  the  entire  property. 

As  far  as  my  own  experience  goes,  many  of  the  cases  of  fraud- 
ulent pretenses  which  I  have  tried  have  been  cases  in  which  the  pris- 
oner has  obtained  goods  from  a  tradesman  upon  the  false  pretense 
that  he  came  with  the  order  from  a  customer.  In  these  cases  no 
property  passes  either  to  the  customer  or  to  the  prisoner,  and  I  never 
heard  such  a  case  put  forward  as  a  case  of  larceny.  And  the  authori- 
ties are  distinct,  upon  cases  reserved  for  the  judges,  that  in  such 
cases  there  is  no  larceny. 

In  my  opinion  all  the  authorities  warrant  the  proposition  of  law 
as  laid  down  by  my  Brother  Blackburn  in  the  last  reported  case 
on  the  subject,  Reg.  v.  Prince,  L.  R.  1  C.  C.  150  (which  was,  like 
the  present,  a  case  of  payment  under  a  mistake  of  fact)  :  "If  the  owner 
intended  the  property  to  pass,  though  he  would  not  have  so  intended 
had  he  known  the  real  facts,  that  is  sufficient  to  prevent  the  offense 
of  obtaining  another's  property  from  amounting  to  larceny ;  and 
where  a  servant  has  an  authority  coequal  with  the  master's,  and  parts 
with  his  master's  property,  such  property  cannot  be  said  to  have  been 
stolen,  inasmuch  as  the  servant  intends  to  part  with  the  property  in  it." 

With  those  authorities  before  me  I  cannot  accept  as  the  proper 
test,  not  the  intention  of  the  owner  to  deliver  over  the  property  (which 
is  a  question  of  fact),  but  the  effect  of  the  transaction  in  passing 
the  property,  which  might  raise  in  many  cases  a  question  of  law. 
This  appears  to  me  to  be  a  novelty  at  variance  with  the  definition  oi 
larceny,  which  makes  the  mind  and  intent  of  the  owner  the  test,  and 
irreconcilable  with  the  manner  in  which  these  cases  have  always  been 
dealt  with. 

In  the  present  case  the  transaction  was  with  the  clerk  of  the  post- 
mistress. The  clerk  was  the  person  placed  in  the  office  for  the  pur- 
pose (inter  alia)  of  making  payments  and  taking  receipts.  He  is 
called  the  clerk,  and  therefore  his  act,  within  the  general  scope  of 
his  authority,  would  be  the  act  of  the  postmistress.  But  it  is  sug- 
gested that  the  postmistress  was  not  in  any  sense  the  agent  of  the 
Postmaster  General,  but  had  in  each  case  a  separate  and  particular 
authority  to  make  the  payment.  And  upon  looking  into  the  act  of 
Parliament  (St.  24  &  25  Vict.  c.  14)  I  should  not  be  prepared  to  de- 
cide this  case  upon  the  ground  that  the  postmistress  had  a  general 
authority,  or  more  than  a  particular  one,  to  make  the  payment  of  10s. 
to  the  prisoner.  And  if,  at  the  time  when  the  payment  was  made, 
the  postmistress  or  clerk  had  done  some  act  wholly  out  of  the  au- 
thority, as,  for  instance,  payment  to  a  stranger,  I  should  feel  a  diffi- 


4S4  LARCENY.  (Ch.   13 

culty  in  saying  it  must  be  regarded  as  the  act  of  a  person  capable  of 
passing  the  property  in  such  a  transaction.  But  upon  this  it  is  not 
necessary  to  give  a  decided  opinion,  because  the  prisoner  was  the 
person  entitled  to  be  paid  the  10s.  for  which  he  applied  under  the 
order,  and  the  authority  was  to  pay  to  him  that  sum.  The  exercise 
of  power  in  making  too  large  a  payment  on  behalf  of  the  Postmaster 
General  was,  therefore,  only  excessive,  and  (according  to  the  ordinary 
rule  in  the  exercise  of  power)  was  valid,  so  far  as  it  was  within  the 
power;  the  excess  being  clearly  separable. 

This  is  not  the  case  of  the  postmistress  being  authorized  to  de- 
liver one  bag  of  money  to  one  person  and  another  bag  of  money  to 
another  person.  In  that  case  the  prisoner,  knowingly  getting  the 
wrong  bag,  would  get  something  to  which  he  had  no  color  of  title. 
The  authority  here  is  to  enter  into  an  account  with  the  prisoner,  by 
paying  him  a  certain  amount  and  making  a  corresponding  alteration 
in  the  balance.  And  this  is  done;  the  payment  is  made,  and  the 
corresponding  alteration  in  the  balance ;  but  there  is  a  mistake  in  the 
amount  paid,  and  so  in  the  balance,  and  it  becomes  really  the  ordi- 
nary case  of  payment  by  a  banker's  clerk  by  mistake.  It  appears  to  me 
quite  impossible,  with  due  attention  to  the  facts,  to  regard  the  pris- 
oner as  a  stranger  intervening  in  a  transaction  between  other  parties. 
Xo  other  party  was  present  or  was  named,  and  the  prisoner  entered 
and  left  the  office  in  the  same  character,  viz.,  that  of  payee,  though 
he  left  it  as  payee  of  a  larger  amount  than  he  was  entitled  to,  and 
carried  with  him  the  book,  which  was  an  unanswerable  proof  that 
he  was  payee,  and  was  payee  of  the  larger  amount. 

The  prisoner  was,  therefore,  entitled  to  be  paid  the  10s.  out  of  the 
money  handed  to  him,  and,  that  being  so,  there  is  a  technical  objection 
to  the  conviction — that  there  are  no  particular  chattels  or  pieces  of 
ney  in  respect  of  which  the  charge  of  larceny  can  be  sustained. 

But,  independent  of  this  technical  objection,  the  duty  of  the  pris- 
■  n. t,  if  he  had  acted  as  he  ought  to  have  done,  was  to  have  taken 
out  of  the  amount,  and  to  have  handed  the  rest  to  the  clerk. 
lie  ought,  at  the  same  time,  to  have  handed  back  his  book  and  had 
it  corrected,  because  it  charged  him  with  the  receipt  of  £8  odd;  but 
his  omission  to  do  this  does  not,  in  my  opinion,  involve  him  in  the 
charge  of  larceny. 

There  was  nd  mistake  in  the  person,  because  the  prisoner  handed 

in  his  order  and  also  his  deposit  book;    and  if  the  clerk  had  known 

him  well  it  would  have  made  no  difference,     lie  would  still  have  paid 

him  the  wrong  amount,  because  the  same  cause  would  have  operated — 

ing  at  the  wrong  ordi  r. 

There  was  no  mistake  in  the  amount.     I  mean  it  was  nol  the  case 

of  the  clerk  handing  him  a  £100  note  when  he  intended  to  hand  a  £5 

or,  unknowingly,  two  notes,   instead  of  cue.     He   intended   to 

pay  the  prisoner  the  particular  sum;   and  it  was  a  deliberate  act,  be- 

he  took  the  amounl  from  a  document,  and  completed  the  trans- 


Sec.  4)  THE  TURSPASS.  485 

action  by  debiting  the  prisoner  with  that  sum  in  his  book.  So  that 
it  was  not  like  the  case  of  a  wrong  sum  being  put  down  by  mistake,  and 
the  prisoner  snatching  it  up  and  running  away  with  it,  for  the  pur- 
pose of  preventing  the  mistake  from  being  set  right. 

The  mistake  was  in  the  supposed  amount  of  the  prisoner's  claim. 
The  prisoner  applied  for  10s.,  and  the  clerk  thought  he  was  entitled 
to  more,  and  paid  him  accordingly,  and  his  overpayment  might  have 
been  afterwards  adopted  by  the  postmaster,  so  as  to  make  the  pris- 
oner chargeable  with  the  balance.  The  clerk  did  not  the  less  intend 
to  make  the  payment  which  he  deliberately  made  because  he  was  at 
the  time  under  the  influence  of  a  mistake.  He  would  not  have  intended 
to  make  the  payment,  but  for  the  mistake.  Mistakes  are  constantly 
occurring,  and  few  people  can  say  that  they  have  not  acted  under 
their  influence ;  but  their  acts  remain  as  acts  done  at  the  time,  though 
their  effects  may  be  afterwards  corrected.  No  doubt  there  was  no 
intention  to  overpay  the  prisoner — that  is,  to  produce  the  effect  of 
overpayment;  but  the  intention  was  to  do  the  act  of  paying  the 
larger  sum,  because  it  was  thought  to  be  the  proper  one. 

This  is  the  answer  to  one  argument  addressed  to  us,  viz.,  that  the 
prisoner  took  up  what  was  intended  for  another,  and  not  for  him, 
and  therefore  there  was  a  taking  invito  domino.  The  conclusion  of 
law  would  be  quite  correct,  if  it  could  be  correctly  said  that  the 
amount  was  intended  for  another.  The  clerk  ought  to  have  intended 
that  amount  for  another,  and  would  have  done  so  if  he  had  properly 
informed  himself  of  the  facts;  but,  unfortunately  for  the  prisoner, 
the  clerk  did  not  properly  inform  himself  of  the  facts,  and  therefore 
he  intended  the  prisoner  to  receive  the  larger  amount.  The  clerk- 
intended  A.  to  receive  what  he  ought  to  have  intended  B.  to  receive ; 
but  it  was  not  the  less  his  intention  that  A.  should  receive  what  he 
handed  over  to  him.  There  was  only  one  transaction,  and  only  two 
parties  to  it,  the  clerk  and  the  prisoner,  and  his  fault  was  the  work 
of  an  instant,  and  might,  to  an  ignorant  and  illiterate  person,  be  con- 
nected with  some  confusion  of  mind,  though  the  disparity  of  amount 
in  this  case  would  make  a  person  of  any  sense  at  once  see  and  correct 
the  mistake. 

I  do  not  think  a  man  ought  to  be  exposed  to  a  charge  of  felony 
upon  a  transaction  of  this  description,  which  is  altogether  founded 
upon  an  unexpected  blunder  of  the  clerk.  The  prisoner  was  un 
doubtedly  at  the  office  for  an  honest  purpose,  and  finds  a  larger  sum 
of  money  than  he  demanded  paid  over  to  him  and  charged  against 
him.  A  man  may  order  and  pay  for  certain  goods,  and,  by  mistake, 
a  larger  quantity  than  was  paid  for  may  be  put  in  the  package,  and 
he  may  take  them  away;  or  he  may  pay  in  excess  for  that  which  is 
ordered  and  delivered.  Is  the  person  receiving  to  be  put  in  the  peril 
of  a  conviction  for  felony  in  all  such  cases,  upon  the  conclusion  which 
may  be  arrived  at  as  to  whether  he  knew,  or  had  the  means  of  know- 
ing, and  had  the  animus  ftirandi?    I  think  not.    I  think  that  such  cases 


486  LARCENY.  (Ch.   13 

are  out  of  the  area  of  felony,  and.  therefore,  the  animus  furandi  is 
inapplicable,  and  ought  not  to  be  left  to  the  jury.  And  any  conclu- 
sion, founded  upon  the  finding  of  the  jury  upon  a  question  which 
ought  not  to  be  left  to  them,  must  be  erroneous,  because  the  founda- 
tion is  naught.  I  think  the  conviction  was  against  law  and  ought  to 
be  quashed.* 


SECTION  5.— THE  ANIMUS  FURANDI. 


THE  FISHERMAN'S   CASE. 

(York  Assizes,  1583.    2  East,  P.  C.  661.) 

A  traveler  met  a  fisherman  with  fish,  who  refused  to  sell  him  any, 
and  he  by  force,  and  putting  in  fear,  took  away  some  of  his  fish,  and 
threw  him  money  much  above  the  value  of  it;  and  judgment  was 
respited,  because  of  the  doubt  whether  the  intent  were  felonious  on 
account  of  the  money  given.5 


ANONYMOUS. 

(Old   Bailey,   1698.     2  East.  P.  C.   662.) 

At  the  Old  Bailey,  1698,  before  Holt,  C.  J.,  and  other  judges,  it 
was  found  that  A.  assaulted  B.  on  the  highway  with  a  felonious 
intent,  and  searched  the  pockets  of  B.  for  money,  but  finding  none, 
A.  pulled  off  the  bridle  of  B.'s  horse,  and  threw  that  and  some  bread, 
which  B.  had  in  pannels,  about  the  highway,  but  did  not  take  any- 
thing from  B.  And  resolved,  upon  conference  with  all  the  judges, 
that  this  was  no  robbery,  because  nothing  was  taken  from  B.e 


REX  v.  PHILLIPS. 

(Gloucester  Assizes,  1S01.    2  East,  P..  C.  662.) 

Phillips  and  Strong  were  indicted  for  stealing  a  mare  and  geld- 
ing of  John  Goulter.  It  appeared  in  evidence  that  the  prisoners 
had  gone  to  the  stables  of  Goulter,  who  kept  an  inn  at  a  place  called 

*  Martin  and  Bramwell,  p..  p.,  and  Brett,  .7..  delivered  concurring  opinions. 

i Compare  Mason  v.  State,  82  Ark.  288  (1877);  Beckham  v.  State  (Tex.  Cr. 
App.)  22  s.  \v.  411  (1898);    Kirk  v.  Garrett,  si  Md.  888,  :ir>  All.  1089  (1886). 

b  "The  better  reason  seems  to  be  thai  the  particular  goods  were  nol  taken 
wiiii  ji  felonious  Intenl  ;  r<>r  Burely  there  was  a  sufficient  taking  and  separa- 
tion of  the  goods  From  the  person."  2  Blast,  P.  0.  662.  Accord:  Jordan  v. 
Commonwealth,  25  Grat  (Va.)  943  (1874). 


Sec.  5)  THE    ANIMUS    FURANDI. 


487 


Petty  France,  in  the  night  of  the  26th  of  February  last,  opened  them, 
and  taken  out  the  horse  and  mare,  the  subject  of  the  indictment,  and 
rode  on  them  to  Lechlade,  about  32  or  33  miles  off,  where  they  carried 
them  to  different  inns,  and  left  them  in  care  of  the  hostlers,  direct- 
ing them  to  clean  and  feed  them,  and  saying  that  they  should  re- 
turn in  three  hours.  In  the  course  of  the  same  day  the  prisoners 
were  taken  at  a  distance  of  14  miles  from  Lechlade,  walking  toward 
Farringdon,  in  Berkshire,  in  a  direction  from  Lechlade.  The  jury, 
being  directed  to  consider  whether  the  prisoners,  when  they  took 
the  horse  and  mare,  intended  to  make  any  further  use  of ^  them  than 
to  ride  them,  for  the  purpose  of  assisting  them  in  their  journey  to- 
wards the  place  where  they  were  going,  and  then  to  leave  them, 
to  be  recovered  by  the  owner  or  not,  as  it  might  turn  out,  and 
whether  they  intended  to  return  to  Lechlade  and  make  any  further 
use  of  them,  found  the  prisoners  guilty,  but  added  they  were  of 
opinion  that  the~prisoners  meant  merely  to  ride  them  to  Lechlade 
and  to  leave  them  there,  and  that  they  had  no  intention  to  return 
for  them,  or  to  make  any  further  use  of  them.  Upon  this  finding, 
at  a  conference  first  in  Easter,  and  afterwards  in  Trinity  Term,  1801, 
the  judges  (dissentiente  Grose,  J.,  et  dubitante  Lord  Alvanly) 
held  it  to  be  only  a  trespass,  and  no  felony,  for  there  was  no  inten- 
tion in  the  prisoners  to  change  the  property  or  make  it  their  own, 
but  only  to  use  it  for  a  special  purpose — i.  e.,  to  save  their  labor  in 
traveling.  The  judge  who  dissented  thought  the  case  differed  from 
those  first  above  mentioned,  because  here  there  was  no  intention  to 
return  the  horses  to  the  owner,  but,  for  aught  the  prisoners  concern- 
ed themselves,  to  deprive  him  of  them.  But  the  rest  agreed  that  it 
was  a  question  for  the  jury,  and  that,  if  they  had  found  the  prisoners 
guilty  generally  upon  this  evidence,  the  verdict  could  not  have  been 
questioned. 


REX  v.  CABBAGE. 

(Court  for  Crown  Cases  Reserved,  1815.    Russ.  &  R.  292.) 

The  prisoner  was  tried  before  Thomson,  C.  B.,  at  the  Lent  Assizes 
for  the  county  of  Lancaster,  in  the  year  1815,  on  an  indictment  for 
feloniously  stealing,  taking,  and  leading  away  a  gelding,  the  prop- 
erty of  John  Camplin.1 

It  appeared  that  the  gelding  in  question  was  missed  by  the  prose- 
cutor from  his  stables  on  Monday,  the  28th  of  February,  1815. 
The  stable  door,  it  appeared,  had  been  forced  open.  The  prosecutor 
went  the  same  day  to  a  coal  pit,  about  a  mile  from  the  stable,  where 
he  saw  the  marks  of  a  horse's  feet.  This  pit  had  been  worked  out  and 
had  a  fence  round  it,  to  prevent  persons  from  falling  in.     One  of  the 

i  The  second  count  is  omitted. 


488  LARCENY.  (Ch.   13 

rails  of  this  fence  had  been  recently  knocked  off.  A  man  was  sent 
down  into  the  pit,  and  he  brought  up  a  halter,  which  was  proved  to 
be  the  halter  belonging  to  the  gelding.  In  about  three  weeks  after 
the  finding  of  the  halter,  the  gelding  was  drawn  up  from  the  coal 
pit  in  the  presence  of  the  prosecutor,  and  who  knew  it  to  be  his. 
The  horse's  forehead  was  very  much  bruised,  and  a  bone  struck  out 
of  it.  It  appeared  that,  at  the  time  this  gelding  was  destroyed,  a 
person  of  the  name  of  Howarth  was  in  custody  for  having  stolen  it 
in  August,  1813,  and  that  the  prosecutor,  Camplin,  had  recovered 
his  gelding  again  about  five  weeks  after  it  was  taken.  Howarth 
was  about  to  take  his  trial  for  this  offense  when  the  gelding  was  de- 
stroyed in  the  manner  stated.  The  prisoner,  Cabbage,  was  taken 
into  custody  on  the  27th  of  March,  1815;  and  on  his  apprehension 
he  said  that  he  went  in  company  with  Ann  Howarth  (the  wife  of  Ho- 
warth, who  was  tried  for  stealing  the  said  gelding)  to  Camplin's 
stable  door,  and  that  they  together  forced  open  the  door  and  brought 
the  horse  out.  They  then  went  along  the  road,  till  they  came  to  the 
coal  pit  before  mentioned,  and  there  they  backed  the  horse  into  the 

It  was  objected  by  the  prisoner's  counsel  that  the  evidence  in  this 
case  did  not  prove  a  larceny  committed  of  the  horse;  that  the  taking 
appeared  not  to  have  been  done  with  intention  to  convert  it  to  the  use  of 
the  taker,  "animo  furandi  et  lucri  causa." 

Thomson,  C.  B.,  overruled  the  objection,  and  the  prisoner  was  con- 
victed upon  the  first  count  of  the  indictment  for  stealing  the  horse. 
Judgment  was  passed  on  him,  but  the  learned  Chief  Baron  respited 
the  execution  to  take  the  opinion  of  the  judges  as  to  the  propriety  of 
the  conviction. 

In  Easter  Term,  1815,  the  judges  met  to  consider  this  case,  and  the 
majority  of  the  judges  held  the  conviction  right.  Six  of  the  learned 
judges,  viz.,  Richards,  B.,  Bayley,  J.,  Ghambre,  J.,  Thomson,  C.  B., 
Gibbs,  C.  J.,  and  Lord  Eelenborough,  held  it  not  essential  to  con- 
stitute the  offense  of  larceny  that  the  taking  should  be  lucri  causa. 
They  thought  a  taking  fraudulently,  with  an  intent  wholly  to  deprive 
the  owner  of  the  property,  sufficient ;  but  some  of  the  six  learned  judges 
thought  that  in  this  case  the  object  of  protecting  Howarth  by  the  de- 
struction of  this  animal  might  be  deemed  a  benefit  or  lucri  causa. 
DALLAS,  J.,  Wood,  B.,  Graham,  B.,  Le  Blanc,  J.,  and  1Ii;\tu,  J., 
.thought  the  conviction  wrong.2 

i Accord:  State  v.  Brown,  8  Btrob.  (S.  G.)  508  (1849);  People  v.  Juarez, 
28  Oal.  880  (1866);  Btegall  v.  State,  :'.-J  Tex.  Or.  u.  LOO,  22  B.  W.  L46,  10 
Am.  St.  Rep.  761  (1893);  Mitchell  v.  Territory,  7  okl.  .727,  M  Pnc.  782  (1898); 
State  v.  McKee,  17  Dtah,  870,  53  O.tah,  7::::  (1898).  Contra:  People  v.  Wood- 
ward, 81  Huu  (N.  Y.)  57  (1883);  Pence  v.  State,  HO  Ind.  95,  10  N.  E.  919 
36). 


Sec.  5)  THE    ANIMUS    FUKANDI.  48!) 

REX  v.  WRIGHT. 

(Old  Bailey,  1S28.    9  Car.  &  P.  554,  note.) 

On  an  indictment  for  larceny  by  a  servant  in  stealing  his  master's 
plate,  it  appeared  that,  after  the  plate  in  question  was  missed,  but  be- 
fore complaint  made  to  the  magistrate,  the  prisoner  replaced  it ;  and 
it  was  proved  by  a  pawnbroker  that  the  plate  had  been  pawned  by  the 
prisoner,  who  had  redeemed  it;  and  the  pawnbroker  also  stated  that 
the  prisoner  had,  on  previous  occasions,  pawned  plate  and  afterwards 
redeemed  it. 

Hullqck,  B.  (Holroyd,  J.,  being  present),  left  it  to  the  jury  to 
say  whether  the  prisoner  took  the  plate  with  the  intent  to  steal  it,  or 
whether  he  merely  took  it  to  raise  money  on  it  for  a  time,  and  then 
return  it ;  for  that  in  the  latter  case  it  was  no  larceny.  The  jury  ac- 
quitted the  prisoner.1 


REX  v.  WEBB. 
(Court  for  Crown  Cases  Reserved,  1S35.     1  Moody,  C.  C.  431.) 

The  prisoners  were  tried  before  Mr.  Justice  Patteson,  at  the  Spring 
Assizes  for  Cornwall,  1835,  and  found  guilty. 

The  indictment  charged  them  with  stealing  100  pounds  weight  of 
copper  ore,  the  property  of  Stephen  Davey  and  others.  It  appeared 
in  evidence  that  Stephen  Davey  and  others  were  the  adventurers  in 
a  mine  called  the  Consolidated  Mine. 

The  prisoners  and  two  others  were  tributers  in  their  mine,  but  not 
adventurers.  The  prosecutors  of  the  indictment  were  Cornish,  and 
three  others,  who  were  also  tributers  in  the  mine,  but  not  adventurers. 
It  appeared  that  tributers  (generally  in  companies  of  four)  take  from 
the  adventurers  a  certain  number  of  yards  in  the  mine,  called  a  pitch, 
from  which  they  dig  out  ore,  and  throw  into  a  heap  or  pile  in  some 
level,  whence  they  convey  it  along  the  level  to  a  shaft,  and  so  up  to 
the  surface.  There  it  is  taken  by  the  adventurers,  and  the  tributers 
do  not  interfere  further. 

The  tributers  are  paid  according  to  their  agreement,  so  much  in  the 
pound  on  the  selling  price  of  the  ore.  Where  it  is  very  good,  they 
receive  a  smaller  sum  than  where  it  is  inferior,  because  the  quantity 
of  labor  (which  is  what  they  contribute)   produces  a  more  valuable 

i  In  Reg.  v.  Phetheon,  9  Car.  &  P.  552  (1840),  Gurney,  B.,  said:  "I  think 
that  if  this  doctrine  of  an  intention  to  redeem  property  is  to  prevail,  courts 
of  justice  will  be  of  very  little  use.  A  more  glorious  doctrine  for  thieves  it 
would  be  difficult  to  discover." 

In  Reg.  v.  Trebilcock,  7  Cox,  C.  C.  40S  (1858),  on  similar  facts,  the  jury 
found  the  prisoner  guilty,  but  recommended  him  to  mercy,  believing  that  he 
intended  ultimately  to  return  the  property.  Held,  on  a  case  reserved,  that 
the  verdict  of  guilty  was  consistent  with  the  ground  of  their  recommendation. 
See,  also,  Fields  v.  State,  6  Cold.  (Tenn.)  524  (1SG9). 


490  LARCENY.  (Ch.    13 

commodity  in  the  one  case  than  the  other.  The  prosecutors'  pitch  con- 
tained better  ore  than  the  prisoners'.  The  prosecutors  received  2s.  4d, 
in  the  pound  from  the  adventurers;    the  prisoners,  5s.  6d. 

It  was  proved  satisfactorily  that  the  prisoners  had  taken  a  large 
quantity  of  ore  from  the  prosecutors'  pile  and  added  it  to  their  own. 

Halcomb,  for  the  prisoners,  contended,  secondly,1  that  by  taking 
ore  out  of  one  pile  and  putting  it  in  another  the  prisoners  did  not  steal 
from  the  adventurers,  for  both  piles  remain  in  possession  of  the  ad- 
venturers, if  the  tributers  be  but  servants;  and  if  the  tributers  be 
tenants  in  common,  still,  as  both  piles  were  intended  to  come,  and 
ultimately  would  come,  into  the  hands  of  the  adventurers,  there  could 
be  no  stealing  from  them. 

Rogers,  for  the  prosecutors,  answered  that  the  adventurers  were 
cheated,  for  they  would  have  to  pay  5s.  6d.  in  the  pound  on  the  ore 
removed  to  the  prisoners'  pile,  whereas,  if  it  had  remained  in  the  prose- 
cutors' pile,  they  would  pay  only  2s.  4d.  in  the  pound,  and,  besides 
that,  the  unauthorized  removal  of  the  ore  from  the  prosecutors'  pile 
by  the  prisoners,  with  a  fraudulent  intention  to  appropriate  it  to  their 
own  benefit,  constituted  a  larceny  the  moment  it  was  removed,  which 
could  not  be  cured  by  returning  it  any  way  to  the  adventurers. 

The  learned  judge  was  of  opinion  that  the  property  was  correctly 
laid,  and  a  larceny  proved,  but  reserved  the  latter  point,  and  requested 
the  opinion  of  the  judges  on  both  points. 

In  Easter  Term,  1835,  this  case  was  considered  by  Lord  Denman, 
C.  J.,  Tindal,  C.  J.,  Park,  J.,  Littledaee,  J.,  Gaselee,  J.,  Bosan- 
quet,  J.,  Alderson,  B.,  Williams,  J.,  Patteson,  J.,  and  they  held 
the  conviction  wrong;  Patteson,  J.,  dissentiente.2 


REGINA  v.  RICHARDS. 
(Monmouth  Assizes,  1844.     1  Car.  &  K.  5.°,2.) 

Larceny.  The  prisoner  was  indicted  for  stealing  iron,  the  property 
of  William  Williams  and  others,  his  masters. 

The  iron  alleged  to  have  been  stolen  was  an  iron  axle  of  a  tram 
wagon,  and  it  was  proved  that  the  prisoner  was  employed  as  a  puddler 
by  i  he  prosecutors,  who  were  partners  in  an  iron  company,  and  that 
the  puddlers  employed  by  the  company  were  in  the  habit  of  receiving 
a  certain  quantity  of  pig  iron,  which  they  were  to  put  into  the  furnaces, 
and  they  were  paid  fur  their  work  according  to  the  weight  of  the  iron 
drawn  out  of  the  furnace  and  formed  into  puddle  bars.  The  prisoner 
was  detected  by  the  foreman  of  the  works  in  putting  an  iron  axle,  be- 

i  Pari  <>f  the  case,  dealing  with  another  question,  is  omitted. 
i  The  conviction  was  held  wrong  on  the  second  point. 
Accord:     Reg.  v.  Bolloway,  :;  Oox,  <'.  <'.  241  (1840);    Reg.  v.  Poole,  Dears. 
&  B.  345  (1857).    Cf.  Res  v    Manning,  n.'ars.  21  (1852). 


Sec.  5)  THE    ANIMUS   FURANDI.  491 

longing  to  the  company  (which  was  not  pig  iron),  into  the  furnace 
with  the  pig  iron.  The  foreman  stated  that  the  value  of  the  axle  to 
the  company  was  about  7s.,  and  he  had  calculated  that  the  gain  to  the 
prisoner  by  putting  it  in  the  furnace  and  melting  it  would  be,  according 
to  the  mode  adopted  for  paying  for  the  work,  a  fraction  more  than  a 
penny. 

Tindal,  C.  J.  I  doubt  whether  the  act  of  the  prisoner,  though  un- 
questionably fraudulent  and  wrongful,  comes  within  the  definition  of 
a  larceny,  as  the  iron  was  to  come  back  to  the  owners  in  the  same  sub- 
stance, though  in  another  form. 

G.  K.  Rickards,  for  the  prosecution.  In  the  case  of  Rex  v.  Morfitt, 
R.  &  R.  C.  C.  307,  it  was  held  that  a  servant's  clandestinely  taking 
his  master's  corn  to  give  to  his  master's  horse  is  felony;  and  in  the 
case  of  Rex  v.  Cabbage,  R.  &  R.  C.  C.  292,  where  the  prisoner  forced 
open  a  stable  door,  and  took  out  a  horse  and  led  it  to  an  old  coal  pit, 
and  there  backed  it  down  and  killed  it,  the  object  being  that  the  horse 
might  not  contribute  to  furnish  evidence  against  another  person,  named 
Howarth,  who  was  under  the  charge  of  stealing  it,  the  judges  held 
that  this  was  larceny,  although  the  prisoner  had  no  intention  of  de- 
riving any  pecuniary  benefit  from  taking  the  horse. 

Tindal,  C.  J.  I  shall  leave  it  to  the  jury  to  say  whether  the  pris- 
oner put  the  axle  into  the  furnace  with  a  felonious  intent,  to  convert 
it  to  a  purpose  for  his  own  profit ;   for,  if  he  did  so,  this  was  larceny. 

His  lordship  left  this  question  to  the  jury. 

Verdict— Guilty. 


REGINA  v.  PRIVETT. 

(Court  for  Crown  Cases  Reserved,  1846.    1  Den.  C.  C.  193.) 

The  prisoners  were  tried  before  Mr.  Justice  ErlE,  at  the  Spring 
Assizes,  for  the  county  of  Hants. 

It  was  proved  that  the  prisoners  took  from  the  floor  of  a  barn,  in 
the  presence  of  the  thresher,  five  sacks  of  unwinnowed  oats,  and 
secreted  them  in  a  loft  there,  for  the  purpose  of  giving  them  to  their 
master's  horses;  they  being  employed  as  carter  and  carter's  boy,  but 
not  being  answerable  at  all  for  the  condition  or  appearance  of  the 
horses. 

The  jury  found  that  they  took  the  oats  with  intent  to  give  them  to 
their  master's  horses,  and  without  any  intent  of  applying  them  for 
their  private  benefit. 

The  learned  judge  reserved  the  case  for  the  opinion  of  the  judges 
on  the  point  whether  the  prisoners  were  guilty  of  larceny  R.  v.  Mor- 
fitt and  Another,  Russ.  &  R.  307 ;  R.  v.  Cabbage,  Russ.  &  R.  292. 

Lord  Denman,  C.  J.,  Tindal,  C.  J.,  Parke,  B.,  Patteson,  J.,  Wil- 
liams, J.,  COLTMAN,  J.,  ROLFE,  B.,  WlGHTMAN,  J.,  CrESSWELL,  J., 
Erle,  J.,  and  Platt,  B.,  met  to  consider  this  case. 


402  LARCENY.  (Ch.    13 

The  greater  part  of  the  judges  present  (exclusive  of  Erle,  J.,  and 
Platt,  B.)  appeared  to  think  that  this  was  larceny,  because  the  pris- 
oners took  the  oats  knowingly  against  the  will  of  the  owner,  and  with- 
out color  of  title  or  of  authority,  with  intent,  not  to  take  temporary 
possession  merely,  and  then  abandon  it  (which  would  not  be  larceny), 
but  to  take  the  entire  dominion  over  them,  and  that  it  made  no  differ- 
ence that  the  taking  was  not  lucri  causa,  or  that  the  object  of  the  pris- 
oners was  to  apply  the  things  stolen  in  a  way  which  was  against  the 
wish  of  the  owner,  but  might  be  beneficial  to  him.  But  all  agreed 
that  they  were  bound  by  the  previous  decisions  to  hold  this  to  be  lar- 
ceny, though  several  of  them  expressed  a  doubt  if  they  should  have  so 
decided,  if  the  matter  were  res  integra.1 

Erle,  J.,  and  Pla-iT,  B.,  were  of  a  different  opinion.  They  thought 
that  the  former  decision  proceeded  in  the  opinion  of  some  of  the 
judges  on  the  supposition  thot  the  prisoners  would  gain  by  the  taking, 
which  was  negatived  in  this  caje;  and  they  were  of  opinion  that  the 
taking  was  not  felonious,  because  to  constitute  larceny  it  was  essential 
that  the  prisoner  should  intend  to  deprive  the  owner  of  the  property 
in  the  goods,  which  he  could  not  if  he  me^nt  to  apply  it  to  his  use. 

i  Accord:  Reg.  v.  Usborne,  5  Jur.  200  (1S41) ;  Reg.  v.  Coreswell,  5  Jur. 
251  (1841).    Contra:    Reg.  v.  Cole,  5  Jur.  200,  note  (1839). 

"The  jury  were  of  opinion  that  O'Donnell  had  got  some  person  to  take 
away  the  mare  in  order  to  extort  from  Peebles  money,  which  he  knew  he  had 
no  claim  to,  for  a  return  of  the  mare,  and  that  O'Donnell  had  the  mare  re- 
turned, knowing  that  the  money  had  been  deposited  with  and  would  be  paid 
to  him  by  Sweeney;  and  it  was,  in  fact,  paid  for  the  return  of  the  mare, 
though  nominally  in  relation  to  the  farm,  and  accordingly  found  the  prisoner, 
O'Donnell,  guilty.  At  the  instance  of  Mr.  Dowse,  counsel  for  the  prisoner, 
O'Donnell,  I  respited  sentence,  and  discharged  him  on  entering  into  recogni- 
zance, with  two  sureties,  to  appear  at  the  next  assizes  to  receive  sentence. 
W<'  are  all  of  opinion  that  the  conviction  was  right,  and  that  the  jury  were 
right  in  tbeir  finding  on  the  questions  submitted  to  them.  It  is  true  there 
may  not  have  been  a  larceny  committed,  but  we  think  there  was  evidence  to 
justify  the  jurv  in  such  a  finding."  Monahan,  C.  J.,  in  Regina  v.  O'Donnell, 
7  Cox,  C.  C.  337  (1857). 

See,  also,  Reg.  v.  Peters,  1  Car.  &  K.  245  (1843);  Commonwealth  v.  Mason, 
105  Mass.  163,  7  Am.  Rep.  507  (1870);  Dunn  v.  State,  34  Tex.  Cr.  R;  257,  30 
S.   \V.  227,  53  Am.  St.  Rep.  714  (1895). 

"Another  point  thai  seems  to  be  relied  on  by  counsel  for  the  prisoners  is 
that  one  of  them  supposed  the  wheel  belonged  to  a  person  who  owed  him  for 
labor.  Such  a  supposition,  even  If  it  were  true,  was  neither  a  Justification 
nor  an  excuse.  The  law  docs  not  permil  a  creditor  to  make  collection  of 
whal  is  due  him  hv  n  larceny  of  his  creditor's  goods."  Lake,  C  J.,  in  Get- 
tlnger  v  State  18  Neb.  812,  14  N.  w.  403  [1882).  A. -cord.  Commonwealth  v. 
Btebblns,  8  Gray  (Mass.)  492  (1857).  P.ui  sec  XVjng  v.  3tate,  37  Tex.  Cr.  R. 
457,  36  S.  W.  272  (1896). 


Sec.  5)  THE   ANIMUS   FDRANDI.  4(J*J 

REGINA  v.  GODFREY. 
(Worcester  Assizes.  1838.    8  Car.  &  P.  563.) 

Larceny.  The  indictment  charged  the  prisoner  with  having  stolen 
six  sheets  of  paper,  of  the  value  of  threepence,  and  a  paper  parcel  con- 
taining two  letters,  of  the  value  of  threepence,  of  the  goods  and  chat- 
tels of  William  Brinton. 

It  was  opened  by  W.  J.  Alexander,  for  the  prosecution,  that  Mr. 
Brinton  was  a  solicitor  at  Kidderminster,  and  that  the  prisoner,  Mr. 
Godfrey,  was  an  innkeeper  and  stagecoach  proprietor  at  that  place, 
and  that  on  Saturday,  the  29th  of  July,  1837,  Mr.  Brinton  being  at 
Brierley  Hill,  engaged  in  the  South  Staffordshire  election,  he  had 
occasion  to  send  two  letters  to  Kidderminster;  these  letters  being  in- 
closed in  a  parcel  addressed,  "Mrs.  W.  Brinton,  Kidderminster.  Im- 
mediate." The  parcel  was  sent  by  a  coach  of  which  the  prisoner  was 
the  proprietor.  However,  on  Mr.  Brinton's  arriving  at  home  on  the 
next  day,  he  discovered  that  the  parcel  had  not  arrived ;  and  on  a 
note  being  sent  to  Mr.  Godfrey  respecting  it  he  returned  a  written 
answer,  stating  that  no  parcel  had  arrived  directed  to  W.  Brinton, 
Esq.,  and  in  answer  to  another  note  he  replied  that  no  parcel  had  ar- 
rived for  Mr.  Brinton.  It  would,  however,  be  proved  that  the  parcel 
did  arrive,  and  that  Mr.  Godfrey  himself  received  and  opened  it,  and, 
finding  it  to  contain  letters,  he  broke  the  seals  and  read  them,  and  then 
disposed  of  them  in  such  manner  as  he  thought  proper. 

Lord  Abinger,  C.  B.  The  facts  you  have  opened  are  rather  a  tres- 
pass than  a  felony.  Opening  a  letter  from  idle  curiosity  would  not  be 
felony. 

W.  J.  Alexander.  I  should  submit  that,  where  the  act  was  done 
with  intent  to  injure  another,  that  would  be  sufficient. 

Lord  Abinger,  C.  B.  The  term  "lucri  causa"  infers  that  it  should  be 
to  gain  some  advantage  to  the  party  committing  the  offense.  A  ma- 
licious injury  to  the  property  of  another  is  not  enough. 

W.  J.  Alexander.  In  Cabbage's  Case  it  was  held  that  a  taking  with 
intent  to  destroy  is  a  stealing,  if  it  be  done  to  effect  an  object  of  sup- 
posed advantage  to  the  party  committing  the  offense,  or  to  a  third 
person.  There  a  person  took  a  horse,  and  backed  it  into  a  coal  pit 
and  killed  it,  his  object  being  that  the  horse  might  not  contribute  to 
furnish  evidence  against  another  person,  who  was  charged  with  steal- 
ing it;  and  that  was*  held  to  be  larceny,  six  judges  against  five  hold- 
ing it  not  to  be  essential  that  the  taking  should  be  lucri  causa,  but 
thinking  that  a  taking  fraudulenter,  with  intent  wholly  to  deprive  the 
owner  of  the  property,  was  sufficient. 

Lord  Abinger,  C.  B.  I  cannot  accede  to  that.  If  a  person,  from 
idle,  impertinent  curiosity,  either  personal  or  political,  opens  another 
person's  letter,  that  it  is  not  felony.  Mr.  Alexander  has  opened  an 
action  for  not  safely  delivering  a  parcel,  in  which  a  jury  might  give 


494  LARCENY.  (Ch.   13 

considerable  damages.  I  cannot  see  any  excuse  for  the  conduct  of  the 
defendant,  if  it  was  as  stated.  Still,  assuming  that  statement  to  be 
correct,  it  is  no  felony.  It  was  evidently  done  to  gratify  some  idle 
curiosity,  or,  perhaps,  to  prevent  the  letters  from  arriving.  It  is  a 
trespass  and  a  breach  of  contract,  but  no  felony. 

His  Lordship  directed  an  acquittal. 

Verdict — Not  guilty. 


REGINA  v.  JONES. 
(Court  for  Crown  Cases  Reserved,  1846.    2  Car.  &  K.  236.) 

The  prisoner,  Elizabeth  Jones,  pleaded  guilty  to  an  indictment,  un- 
der St.  1  Vict.  c.  36,  §  28,  for  stealing  at  Ross,  from  an  officer  of  the 
post  office,  a  post  letter,  the  property  of  the  Postmaster  General.1  The 
prisoner  had  been  cook  in  the  employ  of  a  Mrs.  Garbett,  of  Upton 
Bishop,  whose  service  she  was  about  to  leave,  having  herself  given 
notice  to  do  so,  and  was  in  treaty  with  a  Mrs.  Dangerfield,  of  Chelten- 
ham, for  a  similar  situation.  Mrs.  Dangerfield  had  consented  to  employ 
her  if  a  satisfactory  answer  from  Mrs.  Garbett  should  be  returned 
to  a  letter  to  be  written  for  the  purpose  of  making  inquiries  respect- 
ing her  character.  This  letter,  the  subject  of  the  present  indictment, 
was  written  by  Mrs.  Dangerfield,  directed  to  Mrs.  Garbett,  and  posted 
at  Cheltenham,  and  was  from  thence  duly  forwarded  to  the  post  office 
at  Ross.  Mrs.  Garbett,  having  found  fault  with  the  prisoner  for  al- 
lowing the  friend  of  another  servant  to  breakfast  in  the  kitchen  with- 
out her  leave,  discharged  her  from  her  service,  and  told  her  that  a 
character  would  not  be  given  to  her.  The  day  after  her  dismissal  she 
went  to  the  post  office  at  Ross,  and  there  applied  to  the  clerk  on  duty 
for  a  letter  from  Cheltenham  addressed  to  Mrs.  Garbett,  stating  that 
she  was  a  servant  in  Mrs.  Garbett's  employ,  and  that  Mrs.  Garbett 
expected  a  letter  from  Cheltenham  that  morning,  which  she  was  to 
take ;  but,  upon  being  informed  that  the  one  letter  by  itself  could  not 
be  given,  the  prisoner  took  from  the  officer  all  the  letters  for  Mr.  and 
Mrs.  Garbett,  including  that  written  by  Mrs.  Dangerfield,  the  subject 
of  the  present  indictment,  which  she  burnt,  but  delivered  the  others  to 
the  person  who  was  in  the  habit  of  conveying  the  letters  from  the  Ross 
post  office  to  the  inhabitants  of  Upton  Bishop,  and  they  reached  Mr. 
and  Mrs.  Garbetl  in  safety. 

The  question  for  the  opinion  of  the  judges  is  whether  t lie  taking 
and  destroying  of  the  letter,  under  these  circumstances,  amounted  to 
larceny. 

Before  Lord  Denman,  C.  J.,  Tindai,,  C.  J.,  Poixock,  C.  B.,  Parke, 
B.,  PaTTESON,  J.,  Williams,  J.,  Coltman,  J.,  Koi.ii:,  B.,  Ckksswlll, 

.  Ki'i.i.,  J.,  and  Platt,  I'.. 

i  Pari  of  tiiis  case  is  omitted. 


494  larceny.  (Ch.  13 


87.  rf* 


Sec.  5)  THE   ANIMUS   FURANDI.  49") 

The  case  was  afterwards  considered  by  the  judges,  who  were  of 
opinion  that  the  offense  of  the  prisoner  was  a  larceny  and  their  Lord- 
ships held  the  conviction  right.2 


REGINA  v.  BAILEY. 
(Court  .for  Crown  Cases  Reserved,  1872.     L.  R.  1  C.  C.  347.) 

Case  stated  by  Lush,  J. : 

The  prisoner  was  indicted  at  Oxford  at  the  Summer  Assizes,  1871, 
under  the  thirtieth  section  of  the  larceny  act  (St.  24  &  25  Vict.  c.  96). 

The  first  count  of  the  indictment  charged  the  prisoner  with  stealing 
certain  process  of  a  court  of  record,  to  wit,  a  certain  warrant  of  ex- 
ecution issued  out  of  the  county  court  of  Berkshire,  in  an  action 
wherein  one  Arthur  was  plaintiff,  and  the  prisoner  defendant;  also 
another  warrant  of  execution  out  of  the  same  court  in  an  action  of 
Halcombe  &  Co.  against  the  prisoner. 

The  second  count  stated  that,  at  the  time  of  committing  the  of- 
fense hereinafter  mentioned,  one  Brooker  had  the  lawful  custody  of 
certain  process  of  a  court  of  record,  to  wit,  a  warrant  of  execution  out 
of  the  county  court  of  Berkshire  in  an  action  between  Arthur  and 
the  defendant ;  that  defendant,  intending  to  prevent  the  due  course 
of  law,  and  to  deprive  Arthur  of  the  rights,  benefits,  and  advantages 
from  the  lawful  execution  of  the  warrant,  did  take  from  Brooker 
the  said  warrant,  he  (Brooker)  having  then  the  legal  custody  of  it. 

It  was  proved  that  two  actions  had  been  brought  in  the  county 
court  against  the  prisoner,  in  each  of  which  judgment  had  been  given 
against  him,  and  a  warrant  of  execution  issued  against  his  goods. 
The  high  bailiff  of  the  court  made  the  levy  under  these  warrants, 
and,  having  done  so,  he  handed  the  warrants  over  to  his  deputy  bailiff, 
and  left  him  in  possession  of  the  goods. 

The  prisoner,  a  day  or  two  afterwards,  forcibly  took  the  warrants 
out  of  the  bailiff's  hands  and  kept  them.  He  then  ordered  him  away 
as  having  no  authority  to  remain  there  any  longer,  and  on  his  re- 
fusal to  go  forcibly  turned  him  out. 

The  prisoner  was  convicted;  but  as  the  learned  judge  entertained 
a  doubt  whether  these  facts  supported  the  count  for  larceny,  and 
whether,  as  the  prisoner's  intention  in  taking  the  warrants  was  not 
to  make  use  of  them,  but  merely  to  deprive  the  bailiff,  as  he  supposed, 
of  his  authority,  and  as  the  validity  of  the  execution  was  not  affected 
by  his  taking  the  warrants,  he  was  guilty  of  taking  them  for  a  fraud- 
ulent purpose  within  the  meaning  of  the  statute,  he  forebore  to  pass 
sentence,  and  admitted  the  prisoner  to  bail  till  the  opinion  of  this 
ourt  should  have  been  taken  upon  the  above  points. 

No  counsel  appeared. 

2  See,  also,  Reg.  v.  White.  9  Car.  &  P.  344  (1S40) ;    State  v.  Wollman,  34 
Minn.  221,  25  N   W.  395  (1885) ;    Reg.  v.  Wynn,  1  Den.  C.  C.  365  (1848). 


496  larceni.  (Ch.  13 

Cockburn,  C.  J.  I  think  the  first  count,  charging  larceny,  will 
not  hold.  It  is  clear  that  the  prisoner  took  the  warrants  from  the 
bailiff,  thinking  that  his  authority  depended  on  his  possession  of  the 
warrants,  and  that  by  taking  them  away  he  would  put  an  end  to  the 
authority.  But  this  was  not  done  animo  furandi.  It  was  not  done 
lucri  causa.  It  was  no  more  stealing  than  it  would  be  to  take  a  stick 
out  of  a  man's  hand  to  beat  him  with  it. 

Under  the  second  count,  the  question  is  whether  what  was  done 
was  done  with  a  fraudulent  purpose.  I  think  it  was  so.  The  purpose 
was  to  deprive  the  officer  of  the  power  to  execute  process,  and  so  to 
defeat  the  execution. 

Martin  and  Channell,  BB.,  and  Keating,  J.,  concurred. 

Lush,  J.  I  quite  concur,  on  consideration,  in  the  judgment  of  the 
court.  I  thought  at  first  that  what  the  statute  meant  was  an  intention 
to  use  the  documents  for  a  fraudulent  purpose. 

Conviction  affirmed. 


SECTION  6.— AGGRAVATED  LARCENY. 
I.  Grand  Larceny. 


Although  that  by  some  opinions  the  value  of  twelvepence  make 
grand  larceny  (22  Assiz.  39,  per  Thorp),  yet  the  law  is  settled  that 
it  must  exceed  twelvepence  to  make  grand  larceny  (West.  1,  c.  15; 
8  E.  2,  Coron.  40-1).    *    *    * 

If  two  or  more  be  indicted  of  stealing  goods  above  the  value  of 
twelvepence,  though  in  law  the  felonies  are  several,  yet  it  is  grand 
larceny  in  both.  8  E.  2,  Coron.  404.  But  if  upon  the  evidence  it 
appears  that  A.  stole  twelvepence  at  one  time,  and  B.  twelvepence  at 
another  time,  so  that  the  acts  themselves  were  several  at  several 
times,  though  they  were  the  goods  of  the  same  person,  this  is  petit 
larceny  in  each,  and  not  grand  larceny  in  cither. 

If  A.  be  indicted  of  larceny  of  goods  to  the  value  of  five  shillings, 
yet  the  petit  jury  may  upon  the  trial  find  it  to  be  but  of  the  value  of 
twelvepence,  or  under,  and  so  petit  larceny.  41  E.  3,  Coron.  451; 
18  Assiz.  11   Stamf.  P.  C.  p.  24b. 

If  A.  steal  goods  of  B.  to  the  value  of  sixpence,  and  at  another 
time  to  the  value  of  eightpence,  so  th.it  all  put  together  exceed  the 
value  of  twelvepence,  though  none  apart  amount  to  twelvepence,  yet 
this  i  held  grand  larceny,  if  he  he  indicted  of  them  altogether. 
Stamf.  I'.  C.  p.  34,  ci  Ilected  from  the  hooks  of  8  E.  2,  Coron.  415; 
I,  c.  101. 

But  if  the  good  be  tolen  at  several  times  from  several  persons, 
and  each  apart  under  value,  as  from  A.  fourpence,  from  B.  sixpence, 


Sec.  6)  AGGRAVATED   LARCENY.  497 

from  C.  tenpence,  these  are  several  petit  larcenies,  and  though  con- 
tained in  the  same  indictment  make  not  grand  larceny.  But  it  seems 
to  me  that  if  at  the  same  time  he  steals  goods  of  A.  of  the  value  of 
sixpence,  goods  of  B.  of  the  value  of  sixpence,  and  goods  of  C.  to 
the  value  of  sixpence,  being  perchance  in  one  bundle,  or  upon  a  table, 
or  in  one  shop,  this  is  grand  larceny,  because  it  was  one  entire  felony 
done  at  the  same  time,  though  the  persons  had  several  properties, 
and  therefore,  if  in  one  indictment,  they  make  grand  larceny. 

1  Hale,  P.  C.  530. 

In  these  prosecutions  the  valuation  ought  to  be  reasonable ;  for 
when  St.  Westm.  II,  c.  25,  was  made,  silver  was  but  20d.  an  ounce, 
and  at  the  time  Lord  Coke  wrote  it  was  worth  5s.,  and  it  is  now 
higher.1 

At  common  law  the  judgment  for  grand  larceny  is  of  death ;  but 
the  party  may  pray  the  benefit  of  his  clergy,  *  *  *  and  he  shall 
also  lose  his  goods. 

2  East,  P.  C.  736. 


REX  v.  JONES. 
(Berkshire  Assizes,  1830.    4  Car.  &  P.  217.) 

The  prisoner  was  charged  with  stealing  in  a  dwelling  house  68 
yards  of  lace  of  the  value  of  £13,  the  property  of  George  Shepherd. 

It  appeared  that  the  prisoner,  on  the  18th  of  October,  1829,  sent 
the  lace  (which  was  in  several  distinct  pieces),  from  Abingdon  to 
London  in  a  parcel  by  the  coach;  and  it  was  also  proved  that  he  was 
the  shopman  of  Mr.  Shepherd,  and  that  no  one  piece  of  lace  was 
worth  £5. 

Talfour,  for  the  prisoner,  suggested  that,  in  favorem  vitse,  the 
learned  Baron  would  take  it  that  the  pieces  of  lace  might  have  been 
stolen  at  different  times. 

i  "As  a  general  rule  the  market  value  of  goods  stolen,  or  that  for  which 
similar  goods  are,  at  the  time  and  place  of  the  theft,  commonly  in  the  mar- 
kets bought  and  sold,  is  the  standard  of  value.  But  when  things  stolen  have 
no  marketable  value — for  instance,  a  secondhand  coffin,  State  v.  Doepke,  68 
Mo.  208,  30  Am.  Rep.  785;  or  secondhand  clothing,  Pratt  v.  State,  35  Ohio 
St.  514,  35  Am.  Rep.  617 ;  Printz  v.  People,  42  Mich.  144,  3  N.  W.  306.  36  Am. 
Rep.  437;  or  brood  sows,  State  v.  Walker,  110  Mo.  467,  24  S.  W.  1011— the 
owner  may  testify  to  the  actual  value  of  the  property  regardless  of  any 
market  value  for  it."  Burcess,  J.,  in  State  v.  Maggard,  160  Mo.  469,  61  S. 
W.  184,  83  Am.  St.  R?p.  484  (1001).  In  State  v.  Hathaway,  100  Iowa,  225, 
69  N.  W.  449  (1896),  where  the  articles  stolen  consisted  of  wearing  apparel 
that  had  been  used,  it  was  held  that  in  determining  the  market  value  of  the 
articles  the  jury  was  not  confined  to  the  price  at  which  dealers  in  secondhand 
clothing  would  buy  or  sell  them,  but  that  the  testimony  of  the  owner  as  to 
their  "reasonable  market  value"  was  competent.  In  State  v.  Brown,  55 
Kan.  611,  40  Pac.  1001  (1895),  it  was  adjudged  that,  "as  the  thief  is  stealing 
the  property  from  the  time  he  takes  it  up  until  he  lays  it  down,"  he  has  no 
cause  to  complain  if  the  value  is  estimated  by  the  market  value  at  the  place 
to  which  it  was  taken  by  him  and  sold. 
Mik.Cb.L.— 32 


498  LARCENY.  (Ch.  13 

Boixand,  B.  I  cannot  assume  that  to  have  been  so.  We  find  that 
the  lace  is  all  sent  in  one  parcel,  and  all  brought  out  of  the  prose- 
cutor's house  at  once,  and  unless  you  can  give  some  evidence  to 
show  that  it  was  stolen  .  at  different  times  you  do  not  raise  your 
w  point1 ;  but,  even  if  you  did,  I  should  think  it  would  be  of  no  avail, 
Mor  on  the  last  winter  circuit  it  appeared  that  a  person  at  Bright- 
on stole  goods  in  the  same  way  that  you  wish  me  to  suppose  that 
this  prisoner  did,  for  it  was  shown  that  he  stole  the  articles  one  or 
two  at  a  time,  and  under  value,  but  that  he  carried  them  out  of  his 
master's  house  all  together,  the  articles  amounting  in  all  to  more 
than  £5  value,  and  Mr.  Baron  Garrow,  after  much  consideration,  held 
that,  as  the  articles  were  all  brought  out  of  the  prosecutor's  house 
together,  it  was  a  capital  offense. 

Verdict— Guilty.2 


REX  v.  BIRDSEYE. 
(Bedford  Assizes,  1830.     4  Car.  &  P.  386.) 

Indictment  for  stealing  pickled  pork,  a  bowl,  some  knives,  and  a 
loaf  of  bread. 

It  appeared  that  the  prisoner  entered  the  shop  of  the  prosecutor 
and  ran  away  with  the  pork.  In  about  two  minutes  he  returned,  re- 
placed the  pork  in  a  bowl,  which  contained  the  knives,  and  took  away 
the  whole  together,  threatening  destruction  to  any  one  who  followed 
him.  In  about  half  an  hour  after,  he  came  back  to  the  prosecutor's 
shop  and  took  away  the  loaf. 

Mr.  Justice  LittlEdale.  This  taking  away  the  loaf  cannot  be 
given  in  evidence  upon  this  indictment.  I  think  that  the  prisoner's 
taking  the  pork,  and  returning  in  two  minutes,  and  then  running 
off  with  the  bowl,  must  be  taken  to  be  one  continuing  transaction; 
but  I  think  that  half  an  hour  is  too  long  a  period  to  admit  of  that 
construction.     The  taking  of  the  loaf,  therefore,  is  a  distinct  offense. 

The  prisoner  was  acquitted ;  the  learned  judge  telling  the  jury  that 
the  felonious  intent  was  not  sufficiently  made  out.8 

i  Accord:    Ackerman  v.  State,  7  Wyo.  504,  54  Pac.  228  (1808). 

i  Accord:  State  v.  Mandich,  24  Nev.  336,  54  Pac.  516  (1898).  Cf.  Scarver 
v.  State,  68  Miss.  107  (1876);  Cody  v.  State,  31  Tex.  Cr.  R.  183,  20  S.  W. 
398  (1892). 

Bee,  also,  State  v.  JUaggard,  100  Mo.  400,  01  S.  W.  184,  83  Am.  St.  Rep. 
484  (l'JOU). 


SeC.  6)  AGGRAVATED   LARCENY.  499 


II.  Larceny  from  Particular  Places. 

Larceny  from  the  house  is  not  distinguished  at  common  law  from 
simple  larceny,  unless  where  it  is  accompanied  with  the  circumstance 
of  breaking  the  house  at  night,  when  it  falls  under  another  description, 
that  of  burglary.  *  *  *  Now  by  various  acts  of  Parliament  the 
benefit  of  clergy  is  taken  away  from  larcenies  committed  in  a  house 
in  almost  every  instance.1 

2  East,  P.  C.  623. 


REX  v.  OWEN. 

(Court  for  Crown  Cases  Reserved,  1792.    2  Leach,  C.  C.  [4th  Ed.]  572.) 

Edward  Owen  was  indicted  for  stealing  105  guineas,  the  property  of 
James  Foreman,  in  the  dwelling  house  of  Patrick  Brady.  Brady  kept 
a  public  house  in  Holborn,  into  which  Foreman  was  seduced  by  the 
prisoner,  under  pretense  of  dividing  the  value  of  a  cross  which  the 
prisoner  picked  up  and  pretended  to  have  found  in  the  street,  and  then 
the  prisoner  obtained  the  105  guineas  from  the  prosecutor,  under  ex- 
actly the  same  circumstances  as  have  been  repeatedly  given  in  evidence 
in  the  ring  dropping  cases.2 

The  jury  found  the  prisoner  guilty;  but  the  judgment  was  respited, 
and  the  case  reserved  for  the  opinion  of  the  twelve  judges,  on  a  ques- 
tion whether,  as  this  was  a  taking  from  the  person  of  Foreman,  though 
in  the  dwelling  house  of  Brady,  the  prisoner  was  ousted  of  his  clergy 
under  St.  12  Anne,  c.  7. 

Mr.  Justice  Ashurst,  in  February  Session,  1793,  said  that  the  judges 
were  of  opinion  that  the  prisoner  was  not,  under  the  circumstances  of 
this  case,  deprived  of  his  clergy  by  &t.  12  Anne,  c.  7,  and  that  this 
opinion  was  founded  on  the  authority  of  the  case  of  Rex  v.  Campbell, 
in  January  Session,  1792 ;  for  that,  to  bring  a  case  within  this  statute, 
the  property  stolen  must  be  under  the  protection  of  the  house,  and  de- 
posited therein  for  safe  custody,  as  the  furniture,  plate,  money  kept 
in  the  house,  and  not  things  immediately  under  the  eye  or  personal 
care  of  some  one  who  happens  to  be  in  the  house.3 

i  By  statutes  in  England  and  in  most  of  our  states  larceny  from  certain 
enumerated  places  has  been  made  a  substantive  crime — as  from  a  dwelling, 
a  house,  a  building,  a  shop,  a  warehouse,  an  office,  a  vessel,  etc. 

2  The  statement  of  the  case  is  printed  from  2  East,  P.  C.  C45. 

s  Accord:  Commonwealth  v.  Lester,  129  Mass.  101  (18S0) ;  State  v.  Pat- 
terson 98  Mo.  283,  11  S.  W.  72S  (1889).  Contra:  Simmons  v.  State,  73  Ga. 
609,  54  Am.  Rep.  8S5  (1884).  See.  also,  Henry  v.  State,  39  Ala.  679  (1866) ; 
Martinez  v.  State,  41  Tex.  120  (1874). 


500  LARCENY.  (Ch.   13 

REX  v.  TAYLOR. 

(Court  for  Crown  Cases  Reserved,  1S20.     Russ.  &  R.  41S.) 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Park,  in 
the  year  1820,  of  stealing  a  watch  in  the  dwelling  house  of  John  Wake- 
field, to  the  value  of  40  shillings. 

The  prisoner  lodged  in  the  house  of  John  Wakefield,  and  the  prose- 
cutor, who  was  an  old  acquaintance  of  the  prisoner,  and  who  could 
not  get  a  bed  in  the  public  house  where  they  met,  accepted  an  in- 
vitation to  take  part  of  the  prisoner's  bed.  They  went  home  together, 
and  neither  John  Wakefield  nor  any  of  his  family  knew  of  the  prose- 
cutor's being  there,  so  that  he  was  the  guest  of  the  prisoner.  The 
prisoner  stole  the  prosecutor's  watch  from  the  bed  head. 

It  having  been  held  that  the  statute  of  12  Anne  (St.  1,  c.  7)  does 
not  extend  to  a  man  stealing  in  his  own  house,  the  learned  judge 
doubted  whether  the  prisoner  was  not  to  be  considered  as  the  owner 
of  the  house  with  respect  to  the  prosecutor.  The  statute  was  made 
for  the  protection  of  property  deposited  in  the  house,  and  not  on  the 
person  of  the  party;  and  the  prosecutor  was  neither  the  occupier 
nor  a  settled  inhabitant  of  the  house  in  which  the  watch  was  taken. 
The  learned  judge  respited  the  judgment,  to  take  the  opinion  of  the 
judges  on  this  conviction. 

In  Easter  Term,  1820,  ten  of  the  judges  met  and  considered  this  case. 
The  majority,  viz.,  Burrough,  J.,  Holroyd,  J.,  Wood,  B.,  BaylEy,  J., 
Graham,  B.,  Richards,  C.  B.,  and  Abbott,  Lord  C.  J.,  held  the  con- 
viction right.1     Richardson,  J.,  Best,  J.,  and  Garrow,  B.,  contra. 


I 


III.  Robbery. 

There  is  also  a  kind  of  theft,  rapine,  which  is  the  same  with  us  as 
robbery,  and  it  is  another  kind  of  handling  against  the  will  of  the  own- 
er, and  a  like  punishment  follows  each  offense,  and  hence  a  robber 
is  called  a  hardened  thief,  for  who  handles  anything  more  against  the 
will  of  the  owner,  than  he  who  carries  off  by  violence? 

Bracton,  f.  150,  b. 

i  Accord:     Rex  v.  Hamilton,  8  Car.  &  P.  49  (1837). 


Sec.  6) 


AGGRAVATED   LARCENT. 


501 


WRIGHT'S   CASE. 

(Upper  Bench,   1649.     Style  56.) 

In  the  case  of  one  Wright,  brought  upon  the  statute  of  hue  and 
cry,  Roll,  Chief  Justice,  said:  That  if  a  man's  servant  be  robbed  of 
his  master's  goods  in  the  sight  of  his  master,  this  shall  be  taken  for 
a  robbing  of  the  master.  And  if  one  cast  away  his  goods  to  save 
them  from  a  robber,  and  the  robber  take  them  up,  and  carry  them 
away,  this  is  a  robbery  done  to  his  person. 


HARMAN'S  CASE. 
(King's  Bench,  1701.    2  Bast,  P.  C.  736.) 


Harman,  being  on  horseback,  desired  Halfpenny  to  open  a  gap  for 
him,  and  while  he  was  so  doing  Harman  took  the  opportunity,  unper- 
ceived,  to  pick  his  pocket  of  his  purse.  Halfpenny,  turning  round 
and  seeing  the  purse  in  Harman's  hand,  demanded  it  of  him,  and  Har- 
man answered  him :  "Thou  villain,  if  thou  speakest  but  a  word  of 
thy  purse,  I  will  pluck  thy  house  over  thy  ears  and  drive  thee  out  of 
the  country,  as  I  did  John  Somers."1  And  so  he  went  away  with  his 
purse.  On  an  indictment  for  robbery,  the  prisoner  was  held  guilty 
of  simple  larceny  only;  the  property  being  obtained  by  stealth,  and 
not  by  violence  or  putting  in  fear.2 


^ 


DAVIES'  CASE. 

(Old  Bailey,   1712.     2  East,   P.  C.  709.) 

Davies,  alias  Beard,  was  indicted  for  taking  a  gentleman's  sword 
from  his  side,  clam  et  secrete ;  but,  it  appearing  that  the  gentleman 
perceived  that  Davies  laid  hold  of  his  sword,  and  that  he  himself  laid 
hold  of  it  at  the  same  time  and  struggled  for  it,  this  was  adjudged 
robbery.8 

i  The  menaces  are  inserted  from  the  report  of  the  case  in  2  Rolle's  Report, 
154. 

2  Accord:  Jackson  v.  State,  114  Ga.  826,  40  S.  E.  1001,  88  Am.  St.  Rep. 
60  (1902). 

s  Accord:  Williams  v.  Commonwealth  (Ky.)  50  S.  W.  240  (1899). 

"Violence  may  be  used  for  four  purposes:  (1)  To  prevent  resistance.  (2> 
To  overpower  the  party.  (3)  To  obtain  possession  of  the  property.  (4)  To 
effect  an  escape.  Either  of  the  first  two  makes  the  offense  robbery.  The  last, 
I  presume  it  will  be  conceded,  does  not.  The  third  is  a  middle  ground.  In 
general,  it  does  not  make  the  offense  robbery ;  but  sometimes,  according  to 
some  of  the  cases,  it  does."  Pearson,  J.,  in  State  v.  John,  50  N.  C.  167,  69 
Am.  Dec.  777  (1857). 


502  LARCENY.  (Ch.    13 

HUGHES'  CASE. 
(Lancaster  Assizes,  1825.     1  Lew.  301.) 

Prisoners  were  indicted  for  robbery.  It  appeared  in  evidence  that 
they,  together  with  others,  their  companions,  hung  around  the  prose- 
cutor's person  in  the  streets  of  Manchester,  and  rifled  him  of  his 
watch  and  money.  It  did  not  appear,  however,  that  any  force  was 
used,  or  any  menace;  but  they  so  surrounded  him  as  to  render  all 
attempt  at  resistance  hazardous,  if  not  vain. 

Per  Bayeey,  J.  In  order  to  constitute  robbery,  there  must  be  ei- 
ther force  or  menaces.  If  several  persons  so  surround  another  as  to 
take  away  the  power  of  resistance,  this  is  force. 

Prisoners  were  convicted.1 


REX  v.  EDWARD. 
(Winchester  Assizes,  1833.     1  Moody  &  R.  2r,7.) 

Indictment  for  robbery. 

The  money  was  obtained  from  the  witness  by  a  threat  to  accuse 
her  husband  of  an  unnatural  offense,  and  the  money  so  obtained  was 
the  property  of  the  husband,  the  prosecutor. 

Littledale,  J.,  said  the  case  was  new  and  perplexing.  He  thought 
it  was  rather  a  misdemeanor.  To  make  a  case  of  this  description  a 
robbery,  the  intimidation  should  be  on  the  mind  of  the  person  threat- 
ened to  be  accused,2  and  the  apprehension  of  the  wife  was  of  a  dif- 
ferent character.  St.  7  &  8  Geo.  IV,  c.  2,  §  7,  is  in  terms  confined 
to  threats  made  to  the  party  himself.  The  principle  is  that  the  per- 
son threatened  is  thrown  off  his  guard,  and  has  not  firmness  to  resist 
the  extortion ;  but  he  could  not  apply  that  principle  to  the  wife  of 
the  party  threatened.  Even  as  a  misdemeanor,  the  case  was  new, 
though  he  thought  that  the  only  way  to  treat  the  offense.  He  there- 
fore directed  an  acquittal. 

The  prisoner  was  acquitted. 

i  gee,  also,  Commonwealth  v.  Snetllng,  4  Bin.  (Pa.)  370  (1812) :  Snyder  v. 
Commonwealth  (Ky.)  55  s.  W.  679  (1900). 

2  See  Rex  v.  Donnelly,  1  Leach,  229  (1779).  Cf.  Rex  v.  Knewland,  2 
Leach,  72  (1796);   Long  v.  State,  12  Ga.  293  (1862). 

in  Thompson  v.  State,  <-,i  Neb.  210,  85  N.  W.  62,  87  Am.  St.  Rep.  468  (1901), 
it  was  held  that  a  threat  to  accuse  ;i  person  <»r  an  unnatural  crime  was  snin 
dent  violence  to  constitute  robbery,  and  thai  the  person  bo  threatened  was 
Justified  In  killing  the  robber  as  a  necessary  means  of  defense. 


Sec.  6)  AGGRAVATED   LARCENY.  503 

HILL  v.  STATE. 
(Supreme  Court  of  Nebraska,  1894.    42  Neb.  503,  60  N.  W.  916.) 

Post,  J.1  Exception  was  taken  also  to  the  following  instruction: 
"You  are  therefore  instructed  in  this  case,  if  you  believe  from  the 
evidence  beyond  any  reasonable  doubt  that,  at  the  time  of  the  alleged 
killing  of  Mattes  Akeson,  the  defendant,  Harry  Hill,  with  John  Ben- 
well,  had  entered  his  dwelling  house,  armed  with  a  deadly  weapon 
or  weapons,  for  the  purpose  of  intimidating  the  deceased  for  the 
furtherance  of  their  purpose  to  steal,  take,  and  carry  away  by  force 
and  violence  the  money  or  any  article  of  personal  property  of  the 
deceased's  dwelling  house,  and  that  in  the  prosecution  of  that  pur- 
pose and  design  the  defendants,  or  either  of  them,  shot  the  deceased, 
and  thereby  caused  his  death,  *  *  *  that  such  killing  would  be 
murder  in  the  first  degree." 

There  appears  to  have  been  an  error  or  omission  in  the  transcrib- 
ing of  the  above  instruction,  wherein  the  court  is  made  to  say  that 
the  accused  might  be  convicted  if  he  feloniously  killed  the  deceased 
while  engaged  with  his  codefendant  in  attempting  forcibly  to  take, 
steal,  or  carry  away  "any  article  of  personal  property  of  the  deceased's 
dwelling  house."  But  the  objection- to  the  instruction  is  upon  other 
grounds,  viz.,  that  it  authorizes  a  conviction  provided  the  jury  should 
find  that  the  defendant  forcibly  entered  the  house  of  the  deceased 
for  the  purpose  of  committing  a  larceny.  Robbery  at  common  law 
was  defined  as  larceny  committed  by  violence  from  the  person  of 
one  put  in  fear.  2  Bishop,  Criminal  Law,  115G.  By  section  13  of  our 
Criminal  Code  it  is  provided  that  "if  any  person  shall  forcibly  and 
bv  violence,  or  by  putting  in  fear,  take  from  the  person  of  another 
any  money  or  personal  property  of  any  value  whatever  with  the  in- 
tent to  rob  or  steal,  every  person  so  offending  shall  be  deemed  guilty 
of  robbery,  and  upon  conviction  thereof  shall  be  imprisoned  in  the 
penitentiary  not  more  than  fifteen  nor  less  than  three  years."  The 
taking,  according  to  each  definition,  must  be  from  the  person,  since 
the  crime  of  robbery  is  an  offense  as  well  against  the  person  as 
against  property.  It  is,  however,  not  essential  to  a  conviction  for 
the  crime  named  that  the  property  be  taken  from  the  body  of  the 
person  wronged.  It  is  sufficient  if  taken  from  his  personal  presence 
or  personal  protection.  2  Bishop,  Criminal  Law,  1177,  117S;  United 
States  v.  Jones,  3  Wash.  C.  C.  (U.  S.)  209,  Fed.  Cas.  No.  15.494; 
Clements  v.  State,  84  Ga.  6G0,  11  S.  E.  505,  20  Am.  St.  Rep.  385: 
State  v.  Calhoun,  72  Iowa,  432,  34  N.  W.  194,  2  Am.  St.  Rep.  25?. 
In  the  last-named  case,  which  was  under  a  statute  similar  to  ours, 
the  prisoner  was  shown  to  have  bound  the  prosecutrix,  and  by  put- 
ting her   in    fear   extorted   information    respecting  the   place   where 

i  Part  only  of  tbis  case  Is  printed. 


504  LARCENY.  (Ch.   13 

her  money  and  other  personal  property  was  kept.  Leaving  her 
bound,  he  went  to  the  place  designated  by  her  in  another  room  of 
the  same  house  and  took  the  property  named  in  the  indictment.  In 
the  opinion  the  court,  by  Beck,  J.,  uses  this  language:  "The  thought 
of  the  statute,  as  expressed  in  the  language,  is  that  the  property 
must  be  so  in  the  possession  or  under  the  control  of  the  individual 
robbed  that  violence  or  putting  in  fear  was  the  means  used  by  the  rob- 
ber to  take  it."  And  in  Clements  v.  State  the  prisoner,  by  threats  of 
violence,  detained  the  prosecutor  in  an  outhouse  while  a  confederate 
entered  his  dwelling,  15  paces  distant,  and  took  therefrom  the  prop- 
erty described,  and  the  taking  was  held  to  be  in  the  presence  of  the 
prosecutor,  within  the  meaning  of  the  statute  defining  robbery.  The 
taking  of  the  property  of  the  deceased  from  his  dwelling  under  the 
circumstances  indicated  by  the  instruction  would  have  been  robbery. 
It  would  also  have  sustained  a  conviction  for  larceny.  Brown  v. 
State,  33  Neb.  354,  50  N.  W.  154.  The  objection  to  the  instruction 
is,  therefore,  without  merit.2 

2  See,  also,  Williams  v.  State,  37  Tex.  Cr.  R.  147,  38  S.  W.  999  (1897) ; 
State  v.  Kennedy,  154  Mo.  268,  55  S.  W.  293  (1899).  Compare  Jackson  v. 
State,  114  Ga.  826,  40  S.  E.  1001,  88  Am.  St.  Rep.  60  (1902). 


EMBEZZLEMENT.  605 

CHAPTER  XIV. 
EMBEZZLEMENT. 


If  any  servant  or  clerk,  or  any  person  employed  for  the  purpose 
in  the  capacity  of  servant  or  clerk,  to  any  person  or  persons  whom- 
soever, or  to  any  body  corporate  or  politic,  shall  [by  virtue  of  such 
employment]  *  receive  or  take  into  possession  any  money,  goods,  bond, 
bill,  note,  banker's  draft,  or  other  valuable  security  or  effects,  for, 
in  the  name  or  on  account  of  his  master  or  masters,  or  employer  or 
employers,  and  shall  fraudulently  embezzle,  secrete,  or  make  away 
with  the  same,  or  any  part  thereof,  every  such  offender  shall  be 
deemed  to  have  feloniously  stolen  the  same  from  his  master  or 
masters,  employer  or  employers,  for  whose  use  or  in  whose  name 
or  names,  or  on  whose  account  the  same  was  or  were  delivered  to 
or  taken  into  the  possession  of  such  servant,  clerk,  or  other  person 
so  employed,  although  such  money,  goods,  bond,  bill,  note,  banker's 
draft,  or  other  valuable  security  was  or  were  not  otherwise  received 
into  the  possession  of  his  or  their  servant,  clerk  or  other  person  so 
employed.     *     *     * 

St.  39  Geo.  Ill,  c.  85. 


REX  v.  SMITH. 

(Court  for  Crown  Cases  Reserved,  1823.     1  Lew.  86.) 

Thomas  Smith  was  indicted  under  the  above  statute2  for  embez- 
zling a  £1  promissory  note,  and  17s.  6d.,  the  property  of  his  masters, 
H.  and  J. 

The  facts  were  as  follows:  H.  and  J.  who  farmed  the  tolls  of 
Y.  and  also  of  Z.,  requested  B.,  who  was  hired  by  them  to  collect  at 
Y.,  to  receive  to  their  use  the  tolls  collected  at  Z.,  and  they  desired 
the  collector  at  Z.  to  pay  them  over  to  B.  at  convenient  opportunities. 
B.  appropriated  to  his  own  use  the  tolls  so  paid  over  by  the  col- 
lector of  Z. 

The  question  was  whether  this  was  an  act  of  embezzlement  within 
the  meaning  of  the  statute. 

i  The  words  in  brackets  are  omitted  in  the  present  statute.  St.  24  &  25 
Vict.  c.  9G,  §  68. 

2  St.  39  Geo.  Ill,  c.  85.    The  statute  is  omitted. 


506  EMBEZZLEMENT.  (Ch.  14 

The  prisoner  was  found  guilty  of  the  embezzlement,  whereupon 
Holroyd,  J.,  reserved  the  point  for  the  consideration  of  the  judges, 
of  whom  five 2  thought  the  conviction  proper,  and  three 3  that  it 
was  wrong. 


REX  v.  SNOWLEY. 
(Norwich  Assizes,  1S30.    4  Car.  &  P.  390.) 

Embezzlement.  It  appeared  that  the  prisoner  was  hired  by  the 
prosecutor  to  lead  a  stallion  round  the  country  during  the  season, 
and  he  was  to  charge  for  each  mare  30s.,  and  not  to  take  less  than 
20s.  He  stated  that  his  account  contained  every  sum  due  to  his 
master;  but  it  was  proved  that  a  sum  of  6s.,  which  was  the  whole 
charge  he  had  made  for  covering  one  mare,  was  not  included  in  his 
account. 

Mr.  Justice  J.  Parke  (having  conferred  with  Mr.  Justice  LiTTLE- 
dale).  This  is  not  an  embezzlement.  To  constitute  an  embezzlement, 
the  prisoner  must  have  received  the  money  by  virtue  of  his  employ- 
ment; and  as  it  was  his  duty  to  take  30s.,  and  not  less  than  20s.. 
this  sum  6s.  was  not  received  by  him  by  virtue  of  his  employment. 
He  must,  therefore,  be  acquitted. 

Verdict — Not  guilty.4 


REGINA  v.  ASTON. 

(Warwick  Assizes,  1847.    2  Car.  &  K.  413.) 

Embezzlement.  The  prisoner  was  indicted  for  embezzling  the 
sum  of  6s.,  received  by  him  as  the  servant  of  John  and  Joseph  Fulford. 

The  prosecutors  were  brewers  at  Birmingham,  and  the  prisoner 
was  their  drayman,  and  was  sent  out  daily  with  porter  for  his  mas- 
ters' customers,  and  also  with  a  surplus  quantity,  which  he  had 
authority  to  sell  at  a  certain  fixed  price  only,  viz.,  at  9s.  6d.  a  dozen. 
The  prisoner  sold  a  dozen  of  this  porter  at  6s.  to  Jeremiah  Webb, 
in  the  month  of  July,  1816,  but  did  not  receive  the  money  at  the 
time  of  the  sale,  but  said  he  should  call  for  it  afterwards.  One  of 
the  Messrs.  Fulford  heard  of  the  transaction  from  the  customer, 
..n.i   told  him  to  let  the  prisoner  have  the  money,  but  this  was  un- 

Park,  J.,  Burrough,  J..  Best,  J.,  Bullock,  B.,  and  Bayley,  .!.,  because, 
though  tills  was  (nit  <>f  tin-  ordinary  course  <>f  the  prisoner's  employment, 
ye\  be  was  servant  to  EL  and  .!.,  and  in  his  character  "i"  servant  t<>  them  bad 
submitted  i"  be  employed  by  them  in  receive  tin-  notes  ami  moneys,  and 
received  them  by  virtue  <»r  ins  being  bo  employed. 
'bbott,  i,.  0.  J..  Bolroyd,  J.,  and  Garrow,  B.,  because  the  prisoner  did 
,„,i  receive  the  not.',  etc.,  by  virtue  of  his  employment,  Inasmuch  as  it  was 
,,,,t  of  Hi,,  course  of  bis  employment  t<>  receive  them. 

*  Accord:  Reg.  v.  Harris,  •-'■">  Bug.  I-.  &  Eq.  Rep.  579  (1864). 


EMBEZZLEMENT.  507 

known  to  the  prisoner;  and  on  the  20th  of  August  following,  the 
prisoner  having  called  for  the  money,  the  customer,  Webb,  paid  it 
to  him,  and,  the  prisoner  having  denied  the  receipt  of  it  to  the  prose- 
cutors, he  was  apprehended. 

Hayes,  for  the  prisoner,  objected  that  the  money  was  not  received 
by  virtue  of  the  prisoner's  employment;  the  prosecutor  having  prov- 
ed that  the  prisoner  had  no  authority  to  sell  at  the  price  charged, 
and  cited  the  case  of  Rex  v.  Snowley,  4  Car.  &  P.  390. 

Patteson,  J.,  after  conferring  with  Parke,  B.,  said  that  he  had 
great  doubts  as  to  the  authority  of  the  case  cited,  and  that  Baron 
Parke  and  himself  also  considered  that,  as  the  master  in  the  pres- 
ent case  had  authorized  the  customer  to  make  payment  to  the  pris- 
oner, the  master  was  bound  by  that  payment,  and  could  not  demand 
more  of  the  customer,  and  that  the  evidence  was  sufficient  to  support 
the  indictment.1  , 

Verdict — Guilty. 


REGINA  v.  CULLUM. 
(Court  for  Crown  Cases  Reserved,  1S73.    L.  R.  2  C.  C.  28.) 

Case  stated  by  the  chairman  of  the  West  Kent  Sessions. 

The  prisoner  was  indicted,  as  servant  to  George  Smeed,  for  steal- 
ing £2,  the  property  of  his  master. 

The  prisoner  was  employed  by  Mr.  Smeed,  of  Sittingbourne,  Kent, 
as  captain  of  one  of  Mr.  Smeed's  barges. 

The  prisoner's  duty  was  to  take  the  barge  with  the  cargo  to 
London,  and  to  receive  back  such  return  cargo,  and  from  such  per- 
sons, as  his  master  should  direct.  The  prisoner  had  no  authority  to 
select  a  return  cargo,  or  take  any  other  cargoes  but  those  appointed 
for  him.  The  prisoner  was  entitled,  by  way  of  remuneration  for  his 
services,  to  half  the  earnings  of  the  barge,  after  deducting  half  his 
sailing  expenses.  Mr.  Smeed  paid  the  other  half  of  such  expenses. 
The  prisoner's  whole  time  was  in  Mr.  Smeed's  service.  It  was  the 
duty  of  the  prisoner  to  account  to  Mr.  Smeed's  manager  on  his  re- 
turn home  after  every  voyage.  In  October  last,  by  direction  of  Mr. 
Smeed,  the  prisoner  took  a  load  of  bricks  to  London.  In  London 
he  met  Mr.  Smeed,  and  asked  if  he  should  not  on  his  return  take 
a  load  of  manure  to  Mr.  Pye,  of  Caxton.  Mr.  Smeed  expressly 
forbade  his  taking  the  manure  to  Mr.  Pye,  and  directed  him  to  re- 
turn with  his  barge  empty  to  Burham,  and  thence  take  a  cargo 
of  mud  to  another  place,  Murston.  Going  from  London  to  Murston, 
he  would  pass  Caxton.  Notwithstanding  this  prohibition,  the  prisoner 
took  a  barge  load  of  manure   from  London   down  to   Mr.   Pye,   at 

i  In  Rex  v.  Harris,  25  Eng.  L.  &  Eq.  Rep.  579  (1854),  ".like,  B.,  adhered 
to  bis  ruling  in  Rex  v.   Snowley. 


508  EMBEZZLEMENT.  (Ch.   14 

Caxton,  and  received  from  Mr.  Pye's  men  £4  as  the  freight.  It 
was  not  proved  that  he  professed  to  carry  the  manure  or  to  receive 
the  freight  for  his  master.  The  servant  who  paid  the  £4  said  that 
he  paid  it  to  the  prisoner  for  the  carriage  of  the  manure,  but  that 
he  did  not  know  for  whom.  Early  in  December  the  prisoner  re- 
turned home  to  Sittingbourne,  and  proposed  to  give  an  account  of 
his  voyage  to  Mr.  Smeed's  manager.  The  prisoner  stated  that  he 
had  taken  the  bricks  to  London,  and  had  returned  empty  to  Burham, 
as  directed  by  Mr.  Smeed,  and  that  there  he  had  loaded  with  mud 
for  Murston. 

In  answer  to  the  manager's  inquiries,  the  prisoner  stated  that  he 
had  not  brought  back  any  manure  in  the  barge  from  London,  and 
he  never  accounted  for  the  £4  received  from  Mr.  Pye  for  the  freight 
for  the  manure. 

The  jury  found  the  prisoner  guilty,  as  servant  to  Mr.  Smeed,  of 
embezzling  £2. 

The  question  was  whether,  on  the  above  facts,  the  prisoner  could 
be  properly  convicted  of  embezzlement.1 

BoviLL,  C.  J.  In  the  former  act  relating  to  this  offense  were  the 
words  "by  virtue  of  his  employment."  The  phrase  led  to  some  diffi- 
culty; for  example,  such  as  arose  in  Reg.  v.  Snowley,  4  C.  &  P. 
390,  and  Reg.  v.  Harris,  Dears.  Cr.  C.  344.  Therefore  in  the  present 
statute  those  words  were  left  out;  and  section  68  requires  instead 
that,  in  order  to  constitute  the  crime  of  embezzlement  by  a  clerk 
or  servant,  the  "chattel,  money,  or  valuable  security  *  *  *  shall 
be  delivered  to,  or  received,  or  taken  into  possession  by  him,  for  or 
in  the  name  or  on  account  of  his  master  or  employer." 

Those  words  are  essential  to  the  definition  of  the  crime  of  em- 
bezzlement under  that  section.  The  prisoner  here,  contrary  to  his 
master's  order,  used  the  barge  for  his  (the  servant's),  own  purposes, 
and  so  earned  money  which  was  paid  to  him,  not  for  his  master, 
but  for  himself;  and  it  is  expressly  stated  that  there  was  no  proof 
that  he  professed  to  carry  for  the  master,  and  that  the  hirer  at  the 
time  of  paying  the  money  did  not  know  for  whom  he  paid  it.  The 
facts  before  us  would  seem  more  consistent  with  the  notion  that  the 
prisoner  was  misusing  his  master's  property,  and  so  earning  money 
for  himself,  and  not  for  his  master.  Under  those  circumstances,  the 
money  would  not  be  received  "for,"  or  "in  the  name  of,"  or  "on 
account  of"  his  master,  but  for  himself,  in  his  own  name,  and  for 
his  own  account.  His  act,  therefore,  does  not  come  within  the  terms 
<jf  the  statute,  and  the  conviction  must  be  quashed.2 

i  Argument  of  counsel  la  omitted. 

incurring  opinions  of  Bramwell,  B.,  and  Blackburn  and  Archibald,  JJ.r 
nrc  omitted. 

"Whoever  embezzles  <>r  fraudulently  converts  to  iii*  own  use,  or  secretes, 
with  intent  i«>  embezzle  or  fraudulently  converl  i<»  bis  own  use,  money,  goods 
or  property  delivered  to  blm,  which  may  be  the  subject  of  larceny,  or  any 


EMBEZZLEMENT.  509 

part  thereof,  shall  be  deemed  guilty  of  larceny."  Cr.  Code  111.  (Rev.  St. 
1874,  c.  38)  §  74. 

Similar  statutes  are  in  force  in  many  states.  It  is  generally  held  that  a 
person  cannot  be  convicted  under  these  statutes  on  an  indictment  for  lar- 
ceny, simply,  as  at  common  law;  that  nothing  that  was  larceny  at  common 
law  is  larceny  under  these  statutes,  and  nothing  that  is  larceny  under  the  stat- 
utes is  larceny  at  common  law ;  but  that,  in  order  to  convict  a  person  of  Larceny 
under  these  statutes,  the  indictment  must  set  out  the  acts  of  embezzlement  and 
then  aver  that  so  the  defendant  committed  the  larceny.  Fulton  v.  State,  13 
Ark.  168  (1852) ;  Kibs  v.  People,  81  111.  599  (1876) ;  Commonwealth  v.  Doherty, 
127  Mass.  20  (1879);  State  v.  Harmon,  106  Mo.  635,  18  S.  W.  128  (1891);  Colip 
v.  State,  153  Ind.  584,  55  N.  E.  739,  74  Am.  St.  Rep.  322  (1899) ;  Zysman  v. 
State,  42  Tex.  Cr.  R.  432,  60  S.  W.  069  (1901).  But  see  State  v.  Taberner,  14 
R.  I.  272,  51  Am.  Rep.  382  (1SS3) ;   State  v.  Shirer,  20  S.  C.  392  (1883). 

In  England  and  many  of  the  United  States  statutes  exist  providing  that  a 
person  indicted  for  larceny  may  be  convicted  of  embezzlement.  In  Huntsman 
v.  State,  12  Tex.  App.  619  (1882),  and  State  v.  Harmon,  106  Mo.  635,  18  S. 
W.  128  (1891),  such  statute  is  declared  to  infringe  the  constitutional  privi- 
lege of  the  accused  to  be  informed  of  "the  nature  and  cause"  of  the  accusa- 
tion against  him. 

In  Reg.  v.  Gorbutt,  Dears.  &  B.  166  (1857),  it  was  held  that  such  statute  does 
not  authorize  a  conviction  of  larceny,  if  there  is  evidence  of  embezzlement 
only. 


510  CHEATING   AND   FALSE  PRETENSES.  (Ch.   15 


CHAPTER    XV. 

OBTAINING  PROPERTY  BY  CHEATS  AND  FALSE 
PRETENSES. 


SECTION   1.— GENERAL  PRINCIPLES. 


Forasmuch   as   many   light   and   evil-disposed   persons,   not   mind- 
ing to  get  their  living  by  truth,  according  to  the  laws  of  this  realm, 

*  *  *  knowing  that  if  they  come  to  any  *  *  *  goods,  chat- 
tels and  jewels  by  stealth,  that  then  they,  being  thereof  lawfully 
convicted  according  to  the  laws  of  this  realm,  shall  die  therefore; 
have  now  of  late  falsely  and  deceitfully  contrived,  devised  and  im- 
agined privy  tokens,  and  counterfeit  letters  in  other  men's  names, 
unto  divers  persons  their  special  friends  and  acquaintances,  for  the 
obtaining  of  money,  goods,  chattels  and  jewels  of  the  same  persons: 

*  *  *  Be  it  ordained  *  *  *  that  if  any  person  or  persons 
falsely  and  deceitfully  obtain  or  get  into  his  or  their  hands  or  pos- 
session, any  money,  goods,  chattels,  jewels,  or  other  things  of  any 
other  person  or  persons,  by  color  and  means  of  any  such  false 
token  or  counterfeit  letter  *  *  *  every  person  and  persons  so 
offending,  and  being  thereof  lawfully  convict,  *  *  *  shall  suf- 
fer, etc, 

St.  33  Hen.  VIII,  c.  1. 


REGINA  v.  JONES. 

(King's  Bench,  1703.     1  Salk.  379.) 

Mr.  Parker  moved  to  quash  an  indictment,  which  was  that  the 
defendant  came  to  A.,  pretending  B.  sent  him  to  receive  £30,  and 
received  it,  whereas  B.  did  not  send  him.  Et  Per  Cur.  It  is  not 
indictable  unless  he  came  with  false  tokens;  we  are  not  to  indict 
one  man  for  making  a  fool  of  another.     Let  him  bring  his  action.1 

i  Qee,  alio,  chapter  [I,  S  7,  supra. 


Sec.  2)  THE   PROPERTY    OBTAINED.  51 1 

All  persons  who  knowingly  and  designedly  by  false  pretence  or 
pretences  shall  obtain  from  any  person  or  persons,  money,  goods, 
wares  or  merchandizes,  with  intent  to  cheat  or  defraud  any  person 
or  persons  of  the  same,  *  *  *  shall  be  deemed  offenders  against 
law  and  public  peace.1 

St.  30  Geo.  II,  c.  24. 


SECTION  2— THE  PROPERTY  OBTAINED. 


PEOPLE  v.  CUMMINGS. 

(Supreme  Court  of  California,  1896.     114  Cal.  437,  46  Pac.  284.) 

Van  Fleet,  J.2  Defendant  was  accused  by  information  of  the 
crime  of  obtaining  property  by  false  pretenses,  under  section  532 
of  the  Penal  Code;  the  property  charged  to  have  been  obtained 
being  described  as  two  certain  parcels  of  land.  He  demurred  to 
the  information  as  not  stating  an  offense.  The  demurrer  was  sus- 
tained, and  the  people  appeal;  the  sole  question  being  whether  land 
is  such  property  as  to  be  the  subject  of  the  offense  sought  to  be 
charged. 

The  offense  of  false  pretenses  under  the  English  statutes  has 
always  been  construed  as  largely  analogous  to  and  closely  border- 
ing upon  that  of  larceny,  and  as  applying  only  to  personal  prop- 
erty, which  was  capable  of  manual  delivery,  and  the  subject  of  the 
latter  offense,  and  has  always  been  punishable  in  much  the  same 
manner  as  larceny.  Real  property  under  the  English  law  was  nev- 
er the  subject  of  the  offense  either  of  cheating  or  of  false  pretenses. 
Being  incapable  of  larcenous  asportation,  it  was  not  regarded  as 
requiring  at  the  hands  of  the  criminal  law  the  same  protection  as 
personalty. 

Our  American  statutes  upon  the  subject  have  all  followed  more 
or  less  closely  those  of  England.  As  indicated,  there  are  slight  dif- 
ferences in  language,  but  in  substantive  purpose  and  effect  they  are 
the  same.  Some,  instead  of  employing  the  specific  terminology  of 
the  English  statutes  in  designating  the  character  of  the  property 
made  the  subject  of  the  offense,  have  used  more  general  and  per- 
haps more  comprehensive  terms,  such,  for  instance,  as  those  found 
in  the  provision  of  our  Code  above  quoted.  In  their  interpreta- 
tion, however,  of  the  purpose  and  effect  of  these  statutes,  the 
American  courts,  by  reason,  no  doubt,  of  the  origin  of  the  offense, 
and   in   obedience   to   a   well-established   rule  of   statutory   construc- 

i  The  present  statute  in  England  is  St.  24  &  25  Vict.  c.  96,  §  88. 
2  Only  extracts  from  the  opinion  are  printed. 


512  CHEATING  AND   FALSE   PRETENSES.  (Cll.   15 

tion,  have  closely  followed  in  a  general  way  that  of  the  English 
courts,  and  the  statutes  of  the  various  states,  however  general  their 
terms,  have  been  uniformly  held  to  apply  only  to  personal  property 
of  a  larcenous  nature. 

The  judgment  is  affirmed. 


SECTION  3.— THE  INTEREST  ACQUIRED. 


CANTER  v.   STATE. 

(Supreme  Court  of  Tennessee,  1881.    7  Lea,  349.) 

MacFarland,  J.,  delivered  the  opinion  of  the  court.1 

This  is  a  conviction  for  obtaining  goods  under  false  and  fraud- 
ulent pretenses.  When  analyzed,  the  charge  means  this:  that  upon 
the  pretense  of  the  defendant  that  he  could  not  try  on  the  articles 
at  the  store  to  see  if  they  would  fit  the  owner  permitted  him  to  take 
them  away  for  the  purpose  of  trying  them  on,  upon  his  promise 
to  return  them;  the  defendant  at  the  same  time  representing  that 
Leming  owed  him  $1.75,  and  would  come  and  buy  the  articles  for 
him  and  pay  for  them.  And  this  is  the  case  made  by  the  proof. 
The  merchant  in  his  testimony  says  in  substance  that  there  was  no 
sale  of  the  goods,  the  title  did  not  pass,  they  were  to  be  returned 
in  any  event,  and  there  was  to  be  no  sale  until  Leming  came  and 
paid  for  the  goods ;  that  he  would  not  sell  to  either  of  them,  ex- 
cept for  the  cash.  The  defendant,  however,  failed  to  return  the 
goods,  and  it  was  proven  that  Leming  owed  him  nothing  and  had 
not  promised  to  purchase  the  goods  for  him. 

The  motion  of  the  defendant  to  arrest  the  judgment  should  have 
been  sustained. 

First.  The  indictment  does  not  make  a  case  under  our  statute, 
which  is  said  to  be  almost  a  transcript  of  the  English  statute  (St. 
30  Geo.  II,  c.  21)  and  of  the  New  York  statute.  To  make  out  a 
case,  it  must  appear  that  the  owner  meant  to  part  with  the  right 
of  property  in  the  thing  obtained,  a!KJnot  the  mere  possession  of 
it.  y  If  the  owner  part  with  tEe  possession  only,  and  not  the  right 
of  property,  it  is  larceny.  Sec  Archbold  Cr.  PI.  &  Pr.  marg  p. 
L76.  Or  if  the  felonious  purpose  to  appropriate  the  goods  be  form- 
ed after  the  possession  was  obtained,  it  might  be  a  felonious  breach 
of  trust   under  our   statute. 

The  judgment  of  the  circuit  court  must  be  arrested.' 

i  Pari  of  tiif  opinion  is  omitted. 

■  Accord:  State  v.  Pickery,  L9  Tex  826  (1867);  Reg.  v.  Kilham,  L.  R. 
i    >■   r   261  (1870);   State  v.  Anderson,  47  Iowa,  L42  (1877);    Lucas  v.  People, 


Sec.  4.)  THE  PRETENSE.  513 

SECTION  4.— THE  PRETENSE. 


REX  v.  SPENCER. 

(Worcester  Assizes,  1828.    3  Car.  &  P.  420.) 

False  pretense.  The  indictment  stated  that  the  prisoner  "did  offer 
and  pay  a  certain  paper  writing,  partly  printed  and  partly  written, 
purporting  to  be  the  promissory  note  of  Coleman,  Smith  &  Morris, 
for  the  payment  of  £1,  as  copartners  and  bankers  trading  under  the 
firm  of  C,  S.  &  M.,  and  did  then  and  there  unlawfully  and  falsely 
pretend  to  one  Peter  Pollard  that  the  same  was  a  good  and  avail- 
able note  of  the  said  C,  S.  &  M.,  whereas,  etc.,  it  was  not,  at  the 
time  it  was  so  offered,  a  good  and  available  note,  as  he,  the  said  F. 
S.,  well  knew,"  etc. 

It  was  proved  that  the  prisoner  gave  the  note  to  the  prosecutor 
in  payment  for  meat;  and  another  witness  proved  that  he  had  told 
the  prisoner  that  the  Leominster  Bank  (from  which  the  note  was 
issued)  had  stopped  payment.  It  was  also  shown,  on  the  part  of 
the  prosecution,  that  the  banking  house  at  Leominster  was  shut  up, 
and  that  Messrs.  Coleman  &  Morris  had  become  bankrupts;  but  it 
appeared,  on  the  cross-examination,  that  Mr.  Smith,  the  third  part- 
ner, had  not  become  bankrupt. 

Busby,  for  the  prisoner,  objected  that,  as  one  of  the  partners  had 
not  become  bankrupt,  the  note  remained  an  available  note  as  it  re- 
spected him;  and  non  constat  that,  if  presented  to  him,  it  would  not 
have  been  paid. 

Gaselee,  J.  On  this  evidence  the  prisoner  must  be  acquitted,  be- 
cause, as  it  appears  that  the  note  may  ultimately  be  paid,  I  cannot 
say  that  the  prisoner  was  guilty  of  a  fraud  in  passing  it  away.1 

Verdict — Not  guilty. 

75  111.  App.  662  (1896) ;    State  v.  Dickinson,  21  Mont.  595,  55  Pac.  539  (189S). 

"The  law  does  not  make  it  an  element  of  the  offense  of  obtaining  money 
or  property  under  false  pretenses  that  it  shall  be  obtained  for  the  person 
making  the  pretenses  himself,  or  that  it  shall  be  intended  to  obtain  it  for  an- 
other." Elliott,  J.,  in  Musgrave  v.  State,  133  Ind.  307.  32  N.  B.  885  (1892). 
Accord:     State  v.  Balliet,  63  Kan.  707,  66  Pac.  1005  (1901). 

i  "It  is  quite  sufficient  to  sustain  the  charge  of  false  pretenses  if  a  person 
knowingly  presents  the  note  of  a  bank  which  has  stopped  payment,  as  a 
current  note,  though  there  may  be  a  dividend  afterwards,  and  a  great  portion 
of  the  value  paid."  Crowder,  J.,  in  Reg.  v.  Evans.  8  Cox,  C.  C.  259  (1859). 
See,  also,  Commonwealth  v.  Stone,  4  Mete.  (Mnss.)  43  (1842) ;  People  v.  Bry- 
ant, 119  Cal.  295,  51  Pac.  960  (189S) ;  State  v.  Bourne,  86  Minn.  432,  90  N.  W. 
1108  (1902). 

Mik.Ob.L.— 33 


514  CHEATING  AND   FALSE  PRETENSES.  (Ch.  15 

REGINA  v.  LEE. 

(Court  for  Crown  Cases  Reserved,  1863.    Leigh  &  C.  309.) 

Lewis  Lee  was  indicted  and  tried  for  obtaining  money  by  false 
pretenses. 

The  prosecutor  owed  prisoner  £16.  10s.  for  a  heifer  and  some 
hay,  and  on  Friday,  the  27th  February,  prisoner  called  on  him  in 
the  evening  to  settle  the  debt.  Prosecutor  put  down  two  £10  notes, 
but  the  prisoner  said  he  could  not  give  change,  upon  which  it  was 
arranged  that  the  prisoner  should  take  one  of  the  £10  notes,  and 
that  the  balance  should  be  paid  at  the  Honiton  Market  the  next 
day,  which  was  done.  Prisoner  then  said:  "I  am  going  to  pay" 
(or  "I've  got  to  pay")  "my  rent  to  the  squire  on  the  1st  of  March: 
but,  as  that  is  Sunday,  I  am  going  to  pay  it  the  next  day.  Will 
you  advance  £10  for  your  father-in-law  on  the  rent  of  the  flax 
field?"  Prosecutor  replied:  "I  don't  wish  to  be  mixed  up  with 
my  father-in-law's  affairs ;  but  you  will  see  him  on  Monday  or  Tues- 
day, when  you  can  make  a  settlement  of  everything."  Prisoner  then 
said:  "Will  you  lend  me  £10  till  Tuesday  or  Wednesday,  and  I 
will  give  you  a  note  of  hand  for  it  to  make  it  all  businesslike"? 
Prosecutor  then  lent  him  £10,  and  prisoner  gave  the  prosecutor  a 
formal  promissory  note  for  that  amount.  Prisoner  did  not  say  he 
required  the  sum  of  £10  to  make  up  his  rent;  but  the  prosecutor 
stated  that  he  believed  that  was  what  he  wanted  it  for.  The  prose- 
cutor in  his  evidence  stated  that,  if  he  had  not  told  him  he  was  go- 
ing to  pay  his  rent,  he  should  not  have  let  him  have  the  money.1 

The  jury  found  the  prisoner  guilty,  and  stated  their  opinion  that 
the  prisoner's  statement  that  he  was  going  to  pay  his  rent  on  the 
Monday  was  a  false  pretense,  and  that  the  money  was  advanced 
on  the  credit  of  that  false  pretense. 

Cockburn,  C.  J.  We  are  all  agreed  that  the  case  proved  against 
the  prisoner  will  not  warrant  the  conviction.  There  is  no  false  pre- 
tense of  any  existing  fact.  The  pretense  alleged  is  that  he  had  got 
to  pay  his  rent,  while  in  fact  he  had  no  intention  of  paying  it,  but 
meant  to  appropriate  the  money  to  his  own  purposes.  That  is  not 
a  false  pretense  of  an  existing  fact. 

Conviction  quashed.8 

i  Part  of  this  case  is  omitted. 

> Accord:  Res  v.  Goodhall,  Russ.  &  Ry.  401  (1821);  Rox  v.  Douglass,  1 
Moo.  402  (1830);    Dalton  v.  State,  113  Ga.  1037,  39  S.  m  408  (1901). 


Sec.  4)  THE   PRETENSE.  515 

REGINA  v.  MURPHY. 
(Court  for  Crown  Cases  Reserved  (Ireland)  1876.     Ir.  R.  10  O.  L.  508.) 

The  prisoner,  Mary  Murphy,  was  convicted  at  the  Commission  for 
the  county  of  the  city  of  Dublin  in  April,  1876,  of  obtaining  goods 
under   false  pretenses.1 

Evidence  was  given  by  several  persons  that  the  prisoner  had  writ- 
ten letters  to  the  witnesses  inclosing  half  notes,  and  requesting  that 
goods  should  be  forwarded  to  her;  that  the  goods  were  sent,  but 
the  prisoner  did  not  send  the  second  halves  of  the  notes.  Several 
of  the  witnesses  held  the  corresponding  halves  of  the  notes  sent  to 
the  others.  The  police  constable  who  arrested  the  prisoner  found 
several  half  notes  with  her. 

The  case  was  left  to  the  jury,  who  found  the  prisoner  guilty. 

James  Murphy,  Q.  C,  in  support  of  the  prosecution.  In  this 
case  the  sending  of  the  half  notes  was  an  intimation  that  the  per- 
son from  whom  the  goods  were  sought  was  not  to  rely  upon  a  mere 
promise  to  pay.  It  was  an  intimation  that  the  transaction  was  to  be 
a  ready  money  one;  and  if  the  intimation  of  such  a  state  of  facts 
was  made  with  intent  to  defraud,  and  induced  parties  to  part  with  their 
goods,  that  is  a  false  pretense. 

[Morris,  C.  J.  The  only  question  is,  did  the  sending  of  the  half 
notes  imply  that  the  prisoner  had  the  corresponding  halves?  O'Brien, 
J.  You  say,  Mr.  Murphy,  that  the  mere  act  of  sending  the  half  notes 
was  a  representation  that  the  prisoner  had  the  other  halves  ?]  Yes ; 
upon  the  authority  of  R.  v.  Giles,  L.  &  C.  205. 

Morris,  C.  J.,  stated  that  the  court  were  unanimously  of  opinion 
that  the  conviction  should  be  affirmed. 

Conviction  affirmed.2 


REGINA  v.  JONES. 

(Court  for  Crown  Cases  Reserved,  1897.     [1898]  1  Q.  B.  119.) 

The  judgment  of  the  court  (Lord  Russell  of  Killowen,  C.  J., 
Wright,  Kennedy,  Darling,  and  Channell,  JJ.)  was  delivered  by 

Lord  Russell  of  Killowen,  C.  J.  This  case  was  reserved  for  our 
consideration  by  the  Recorder  of  Worcester.  The  defendant  was 
indicted  in  two  counts.  In  the  first  he  was  charged  under  the  lar- 
ceny act  of  1861,  with  obtaining  goods  by  false  pretenses.3 

The  facts  were  shortly  these :  The  prosecutor  kept  an  eating  house, 
and  on  June  20th  the  defendant  went  in  and  asked  for  some  soup. 

i  Part  of  this  case  is  omitted. 

-  See,  also,  Rex    v.  Taylor.  65  J.  P.  457  (1901).     Cf.  Cowan  v.  State,  41 
Tex.  Cr.  R.  617,  56  S.  W.  751  (1900). 
3  Part  of  this  case  is  omitted. 


51G  CHEATING   AND   FALSE   PRETENSES.  (Cll.    15 

He  was  told  that  there  was  none  ready,  and  thereupon  asked  for 
some  cold  beef.  He  was  told  that  there  was  none,  but  that  he  could 
have  some  cold  lamb  and  salad ;  and  this  he  accordingly  ordered. 
He  then  ordered  half  a  pint  of  sherry,  and  went  upstairs  to  have  his 
meal.  While  there  he  rang  the  bell,  and  ordered  another  half  pint 
of  sherry.  Subsequently  he  again  rang  the  bell,  and  asked  what  there 
was  to  pay,  and,  upon  being  told  four  shillings,  said  that  he  had  no 
means  of  paying,  that  he  had  no  money,  and  had  (as  was  the  fact) 
only  a  halfpenny  upon  him.  Such  was  the  state  of  the  facts.  All 
that  the  defendant  did  was  to  go  into  an  eating  house,  order  food" 
and  refreshment,  and  eat,  but  not  pay  for  it.  No  question  was  put  to 
him,  and  no  inquiry  was  made  of  him,  by  the  prosecutor  as  to  his 
means ;  nor  was  any  statement  made  by  him  whether  he  had  means 
to  pay.  The  question  is  whether  this  can  be  regarded  as  a  state  of 
things  in  which  a  jury  would  be  justified  in  finding  that  the  defend- 
ant obtained  consumable  articles  by  false  pretenses.  We  do  not  de- 
sire to  say  anything  which  can  weaken  the  authority  of  the  decisions 
which  say  that  there  can  be  a  false  pretense  by  conduct;  for  example, 
the  case  of  Rex  v.  Barnard,  7  C.  &  P.  784,  where  a  cap  and  gown 
were  used  by  a  man  who  had  no  right  to  wear  them,  in  order  to  convey 
the  notion  that  he  was  a  member  of  the  University.  Nor  do  we  in  any 
way  dispute  the  authority  of  another  class  of  cases ;  that  is,  where 
a  man  gives  a  check  on  a  bank  where  he  either  has  no  account  or 
has  not  sufficient  means  to  meet  the  check,  and  must  have  known 
that  he  had  not  sufficient  means.  In  the  present  case  the  defendant 
did  nothing  beyond  what  I  have  already  stated.  No  inquiry  was 
made  of  him,  and  no  statement  was  made  by  him.  Under  the  cir- 
cumstances, we  do  not  think  that  the  case  could  properly  be  left  to 
the  jury  on  the  first  count.  There  was  no  evidence  that  the  defendant 
had  obtained  these  articles  by  false  pretenses. 
Conviction  quashed  on  first  count.3 


REGINA  v.  BRYAN. 
(Court  for  frown  Cases  Reserved,  1857.    Dears.  &  T..  265.) 

The  following  case  was  reserved  and  stated  for  the  consideration 
and  decision  of  the  Court  of  Criminal  Appeal  by  the  Recorder  of 
London. 

At  a  Session  of  Gaol  Delivery,  hold  en  for  the  jurisdiction  of  the 
Central  Criminal  Court,  on  the  2d  day  of  February,  A.  D.  1857, 
John  Bryan  was  tried  before  me  for  obtaining  money  by  false  pre- 
tenses. 

» The  conviction  on  the  second  count,  (Tamed  In  section  13  of  the  debtors' 
act  of  L869,  wai  affirmed. 


SCC.  4)  -  TTIE    PKETENSE.  517 

There  were  several  false  pretenses  charged  in  the  different  counts 
of  the  indictment,  to  which,  as  he  was  not  found  guilty  of  them  by 
the  jury,  it  is  not  necessary  to  refer.  But  the  following  pretenses  were, 
among  others,  charged :  '  That  certain  spoons  produced  by  the  prison- 
er  were  "of  the  best  quality/ "that  they  were  equal  to  Elkington's  A 
(meaning  spoons  and  forks  made  by  Messrs.  Elkington,  and  stamped 
by  them  with  the  letter  A);,''  that  the  foundation  was  of  the  best  ma- 
terial, and  that  they  had  as  much  silver  upon  them  as  Elkington's- A. 
The  prosecutors  were  pawnbrokers,  and  the  false  pretenses  were 
made  use  of  by  the  prisoner  for  the  purpose  of  procuring  advances 
of  money  on  the  spoons  in  question  offered  by  the  prisoner  by  way 
of  pledge,  and  he  thereby  obtained  the  moneys  mentioned  in  the  in- 
dictment by  way  of  such  advances.  The  goods  were  of  inferior  quali- 
ty to  that  represented  by  the  prisoner,  and  the  prosecutors  said  that, 
had  they  known  the  real  quality,  they  would  not  have  advanced  money 
upon  the  goods  at  any  price.  They  moreover  admitted  that  it  was 
the  declaration  of  the  prisoner  as  to  the  quality  of  the  goods,  and 
nothing  else,  which  induced  them  to  make  the  said  advances.  The 
moneys  advanced  exceeded  the  value  of  the  spoons.  The  jury  found 
the  prisoner  guilty  of  fraudulently  representing  that  the  goods  had 
as  much  silver  on  them  as  Elkington's  A  and  that  the  foundations 
were  of  the  best  material,  knowing  that  to  be  untrue,  and  that  in 
consequence  of  that  he  obtained  the  moneys  mentioned  in  the  indict- 
ment. The  prisoner's  counsel  claimed  to  have  the  verdict  entered 
as  a  verdict  of  not  guilty,  which  was  resisted  by  the  counsel  for  the 
prosecution;  and,  entertaining  doubts  upon  the  question,  I  directed 
a  verdict  of  guilty  to  be  entered,  in  order  that  the  judgment  of  the 
Court  for  the  Consideration  of  Crown  Cases  might  be  taken  in  the 
matter;  and  the  foregoing  is  the  case  on  which  that  judgment  is 
requested.  Russell  Gurney. 

B.  C.  Robinson,  for  the  prisoner.  This  is  simply  a  misrepresenta- 
tion of  quality,  and  is  not  within  the  statute.  A  representation  that 
a  thing  is  in  specie  that  which  it  is  not  has  been  held  to  be  within 
the  statute;  but  there  is  no  authority  to  show  that  a  mere  misrepre- 
sentation of  the  quality  of  an  article  is. 

Lord  Campbell,  C.  J.  With  regard  to  quality  it  has  been  said  that 
it  is  lawful  to  lie.  The  seller  exaggerates,  and  the  buyer  depreciates 
the  quality.  The  only  specific  fact  here  is  that  the  spoons  were  equal 
to  Elkington's  A. 

B.  C.  Robinson.  All  the  representations  are  mere  vaunting  or 
puffing  of  the  goods.  I  cannot  contend  that  the  prisoner  did  not 
tell  a  willful  lie.  No  doubt  he  did.  But  the  articles  he  proposed  to 
pledge  were  plated  spoons;  and  they  were  plated  spoons,  although 
of  an  inferior  quality  to  that  which  he  represented  them  to  be.  In 
Regina  v.  Roebuck,  D.  &  B.  24,  the  chain  was  represented  to  be 
silver,  when  it  was  not  silver,  but  base  metal.  In  Regina  v.  Abbott. 
1  Den.  C.  C.  273,  the  cheese  was  not  of  the  kind  it  was  represented 


518  CHEATING   AND   FALSE   PRETENSES.  (ph.    1? 

to  be.  The  bulk  of  the  cheese  was  said  to  be  the  same  as  the  taster, 
when  it  was  not.  To  make  this  case  analogous  to  those,  the  repre- 
sentation must  have  been  that  the  spoons  were  actually  Elkington's 

A,  and  not  equal  to  Elkington's  A. 

Pollock,  C.  B.  Would  it  be  indictable  to  say  that  a  cheese  came 
from  a  particular  dairy,  when  it  did  not? 

B.  C.  Robinson.  That  would  be  a  much  stronger  case  than  this, 
and  would  resemble  Regina  v.  Abbott ;  but  if  this  conviction  is 
good,  a  man  selling  beer  as  treble  X,  when  it  was  double  X,  would 
be  indictable,  and  who  is  to  decide  between  buyer  and  seller  in  such 
cases  ? 

Coleridge,  J.  If  mere  puffing  by  the  seller  would  be  indictable, 
depreciation  by  the  buyer  would  be  equally  so.  "It  is  nought,  it  is 
nought,  saith  the  buyer;    but  when  he  goeth  his  way  he  boasteth." 

B.  C.  Robinson.  If  the  representation  had  been  that  the  spoons 
were  in  fact  Elkington's  A,  this  case  would  have  resembled  Regina 
v.  Dundas,  6  Cox,  C.  C.  380,  where  a  spurious  blacking  was  sold  as 
blacking  of  Everett's  manufacture,  and  Regina  v.  Ball,  Car.  &  M. 
249,  in  which  articles  were  represented  to  be  silver  which  were  not 
silver.  In  both  those  cases  the  misrepresentation  was  as  to  the 
species,  not  as  to  the  mere  quality  of  the  article.  If  such  representa- 
tions were  to  be  held  within  the  statute,  trade  could  not  be  carried  on 
with  safety.  The  jury  would  in  each  case  be  made  the  judges  of 
the  offense ;   quality  being  in  most  cases  a  matter  of  opinion  only. 

G.  Francis,  for  the  crown.  This  is  in  fact  a  misrepresentation  of 
quantity,  and  substantially  the  same  as  Regina  v.  Sherwood,  D.  & 

B.  251. 

Lord  Campbell,  C.  J.    Of  the  quantity  of  the  silver? 

G.  Francis.  Yes ;  Elkington's  A  is  an  article  of  ascertained  manu- 
facture, and  by  representing  the  spoons  to  be  equal  to  Elkington's 
A  the  prisoner  represented  that  they  were  covered  with  the  same 
quantity  of  silver  as  Elkington's  spoons  would  be  covered  with.  The 
money  was,  therefore,  obtained  by  a  false  representation  that  there 
was  a  greater  weight  of  silver  than  there  really  was,  and  therefore 
there  was  a  false  pretense  of  an  existing  fact,  within  the  statute 
Secondly,  if  the  representation  was  of  quality  merely,  it  is  within 
the  statute.  The  money  was  obtained  by  the  representation,  and  the 
jury  have  found  the  representation  was  made  with  intent  to  defraud. 

I;.  C.  Robinson,  in  reply.  The  articles  were  of  the  species  repre- 
ted. 

POLLOCK,  C.  B.  Suppose  a  publican  represents  that  his  beer  is 
not  really  Guinne    '  beer,  but  equal  to  Guinness'? 

Lord  Cami-bELL,  C.  J.  The  goods  were  the  goods  bargained  for, 
but  of  inferior  quality. 

BramwEIX,  B.  What  would  you  say  to  the  sale  of  a  paste  pin  for 
a  diamond  pin  ? 


Sec.  4)  THE    PRETENSE.  519 

B.  C.  Robinson.  There  the  species  would  not  be  the  same ;  but 
it  would  not  do  if  the  representation  was  that  the  diamond  was  "of 
the  first  water,"  when  it  was  not. 

Erle,  J.  I  am  also  of  opinion  that  this  conviction  cannot  be  sus- 
tained, not  on  the  ground  that  the  falsehood  took  place  in  the  course 
of  a  contract  of  sale  or  pawning-,  but  on  the  ground  that  the  false- 
hood is  not  of  that  description  which  was  intended  by  the  Legislature. 
It  is  a  misrepresentation  of  what  is  more  a  matter  of  opinion  than 
a  definite  matter  of  fact.  Whether  these  spoons  in  their  manufac- 
ture, and  in  the  electrotype,  were  equal  to  Elkington's  A,  or  not, 
cannot  be,  as  far  as  I  know,  decidedly  affirmed  or  denied  in  the  same 
way  as  a  past  fact  can  be  affirmed  or  denied ;  but  it  is  in  the  nature  of 
a  matter  of  opinion. 

Now,  looking  at  all  the  cases  that  have  been  decided  upon  the 
statute,  those  that  have  been  the  subject  of  the  greatest  comment 
appear  to  me  to  fall  within  the  principle  relating  to  putting  off 
counterfeit  articles  in  sales  where  the  substance  of  the  contract  is 
falsely  represented,  and  by  reason  thereof  the  money  is  obtained.  In 
Regina  v.  Roebuck  the  thing  sold  was  not  the  thing  which  it  was 
sold  for — a  silver  chain.  Here  silver,  though  in  form  an  adjective, 
is  in  reality  the  substance  of  the  contract.  The  silversmith  had  no 
intention  of  buying  a  chain ;  but  he  intended  to  buy  silver,  and  what 
was  represented  to  him  to  be  silver  was  not  silver,  though  it  was 
a  chain.  The  property  in  the  chain  passed,  and  the  money  was 
paid ;  still  clearly  there  was  a  false  pretense  as  to  the  silver.  And 
so  in  the  case  of  Regina  v.  Ball.  So,  also,  in  the  case  of  Regina  v. 
Abbott,  the  substance  of  the  contract  was  not  a  mere  cheese,  a 
thing  in  the  shape  of  a  cheese,  of  any  quality;  but  the  substance  of 
the  purchase  was  a  Chedder  cheese  (or  some  other  species  of  cheese), 
and  the  taster  which  a  fraudulent  person  had  inserted  in  the  cheese 
sold  was  of  that  species,  and  it  was  sold  with  a  false  affirmation  that 
the  article  was  Chedder  cheese,  which  would  be  a  totally  different 
article  from  the  Gloucester  cheese,  or  whatever  the  substance  was 
said  to  be  of  the  cheese  that  was  sold.  In  the  case  of  Everett's 
blacking  it  is  the  same  thing.  We  have  it  in  evidence  in  that  case 
that  a  new  blacking,  salable  in  the  neighborhood  under  the  name  of 
Everett's  blacking,  was  a  vendible  article.  The  prosecutor  purchased 
it  for  the  purpose  of  retailing  it,  and  unless  it  had  been  Everett's 
blacking  he  would  have  had  no  demand  for  it.  The  question  wheth- 
er it  was  Everett's  blacking  was  as  to  the  substance  of  the  article. 
It  was  not  a  blacking  he  wanted.  It  was  Everett's.  And,  though 
it  is  in  form  an  adjective,  it  is  in  reality  the  substance  of  the  bargain. 
These  are  cases  of  putting  off  counterfeit  articles.  As  to  the  case 
of  Regina  v.  Kenrick,  5  Q.  B.  49,  although  in  the  case  of  Rex  v. 
Pywell,  1  Starkie,  402,  it  had  been  held  not  indictable  to  praise  the 
quality  of  a  horse,  knowing  him  not  to  be  worthy  of  the  praise  put 
upon  him,  yet  in  Regina  v.  Kenrick,  as  far  as  I  understand  it,  and 


520  CHEATING   AND   FALSE   PRETENSES.  (Ch.    15 

I  was  counsel  for  the  man,  the  fact  which  brought  the  case  within 
the  definition  of  the  crime  was  the  fact  that  Kenrick  averred  that 
the  horses  had  been  the  property  of  a  lady  deceased,  were  now  the 
property  of  her  sister,  had  never  been  the  property  of  a  horse  dealer, 
and  were  quiet  and  proper  for  a  lady  to  drive.  The  purchaser  want- 
ed those  horses  for  a  woman  of  his  family.  The  substance  of  the 
contract,  in  his  mind,  was  that  they  were  the  property  of  a  lady  who 
had  driven  the  horses,  and  it  was  a  false  assertion  of  a  definite  exist- 
ing fact  to  say,  "They  are  the  property  of  her  sister  now,"  when 
they  were  in  fact  the  property  of  a  horse  dealer,  and  had  run  away 
and  produced  a  fatal  accident.  The  case  of  Regina  v.  Kenrick  was 
not  the  warranting  a  horse  sound,  as  in  the  case  of  Rex  v.  Pywell; 
but  it  was  the  affirming  a  false  fact,  which  the  party  knew  to  be  false, 
and  on  that  ground  the  conviction  proceeded.  It  seems  to  me  that 
these  cases,  which  have  given  rise  to  a  great  deal  of  observation,  fail 
to  bear  out  the  principle  contended  for  by  the  prosecution.  No 
doubt  it  is  difficult  to  draw  the  line  between  the  substance  of  the  con- 
tract and  the  praise  of  an  article  in  respect  of  a  matter  of  opinion. 
Still  it  must  be  done,  and  the  present  case  appears  to  me  not  to 
support  a  conviction  upon  the  ground  that  there  is  no  affirmation  of 
a  definite  triable  fact  in  saying  the  goods  were  equal  to  Elkington's 
A,  but  the  affirmation  is  of  what  is  mere  matter  of  opinion,  and  falls 
within  the  category  of  untrue  praise  in  the  course  of  a  contract  of 
sale,  where  the  vendee  has  in  substance  the  article  contracted  for, 
namely,  plated  spoons.1 

Willes,  J.  My  opinion  is  of  little  value  after  those  which  have 
been  expressed;  but,  such  as  my  opinion  is,  I  am  bound  to  pronounce 
it,  and  I  do  so  with  the  less  diffidence  because  it  was  the  considered 
opinion  of  the  late  Chief  Justice  Jervis,  than  whom  no  man  who  ever 
lived  was  more  competent  to  form  an  opinion  upon  the  subject.  I 
am  of  opinion  that  the  conviction  was  right,  and  that  it  ought  to  be 
affirmed.  It  appears  to  me  that  a  great  number  of  observations  have 
been  brought  to  bear  upon  the  construction  of  the  statute  which  would 
not  have  been  attended  to  if  the  words  of  the  statute  had  been  looked 
at,  and  I  cannot  help  thinking  that  in  many  of  the  cases  to  which  ref- 
erence might  be  made,  and  they  are  very  numerous,  upon  this  sub- 
ject, the  judgments  would  have  commanded  more  attention  in  after 
times  if  the  words  of  the  statute  had  been  attended  to,  and  those  who 
delivered  those  judgments  had  not  permitted  themselves  to  consider, 
id,  whether  a  particular  view  would  or  would  not  be  conven- 
ient to  trade,  either  in  its  pn  Lte  Or  in  the  state  to  which  it 
might  be  reduced  by  a  proper  administration  of  the  law.  I  think 
that  the  words  of  the  statute  should  be  implicitly  hill,  .wed,  and  the 
La  lire  obeyed  according  to  the  terms  in  which  it  has  expr<     ed 

i  Pari  <>r  this  opinion  is  omitted.  Campbell,  0.  J.,  Oockburn,  0.  J.,  Pollock, 
C.  r. ,  Coleridge,  Cresswell,  Crompton,  and  Crowder,  JJ.,  and  Watson  ami 
Cnannell,  BB.,  delivered  concurring  opinions. 


Sec.  4)  THE   PRETENSE.  521 

its  will  in  St.  7  &  8  Geo.  IV,  c.  29,  §  53.  I  am  looking  to  the  words  of 
that  section,  and  I  am  unable  to  bring  myself  to  think  that  the  Legis- 
lature was  at  all  dealing  with  anything  in  the  nature  of  a  distinction 
between  the  case  of  property  fraudulently  obtained  by  a  fraudulent- 
ly obtained  contract  and  goods  obtained  without  any  contract,  but 
fraudulently  obtained.  I  cannot  help  thinking  that,  if  the  atten- 
tion of  the  framers  of  the  statute  had  been  directed  to  any  such  pos- 
sible operation  of  it,  they  would,  in  the  spirit  in  which  the  section 
is  framed,  have  enacted,  in  terms  even  more  clear  than  those  of  the 
fifty-third  section,  that  that  which  is  obtained  by  fraud  shall  not 
benefit  the  fraudulent  person,  and  that  the  interposition  of  a  con- 
tract, also  obtained  by  fraud,  ought  not  to  make  any  difference  in 
favor  of  the  cheat.  The  section  commences  with  the  recital  that  "a 
failure  of  justice  frequently  arises  from  the  subtle  distinction  be- 
tween larceny  and  fraud."  That  is  the  recital,  and  I  had  on  my  mind 
an  impression  that  the  recital  of  a  statute  may  have  the  effect  of  en- 
larging, but  not  of  restraining,  the  operation  of  the  subsequent  enact- 
ment. The  enacting  part  of  the  section  is:  "If  any  person  shall  by 
any  false  pretense  obtain  from  any  other  person  any  chattel,  money, 
or  valuable  security  with  intent  to  cheat  or  defraud  any  person  of 
the  same,  every  such  offender  shall  be  guilty  of  a  misdemeanor." 
And  it  appears  to  me  that  the  only  proper  test  to  apply  to  any  case 
is  whether  it  was  a  false  pretense  by  which  the  property  was  obtained, 
and  whether  it  was  obtained  with  the  intention  to  cheat  and  defraud 
the  person  from  whom  it  was  obtained. 

Now  in  this  case  it  should  seem  that  there  was  a  false  pretense. 
There  was  a  pretense  that  the  goods  had  as  much  silver  upon  them 
as  Elkington's  A,  and  there  was  also  the  pretense  that  the  founda- 
tions were  of  the  best  material.  If  I  could  bring  myself  to  take 
the  view,  which  my  Brother  Erle  has  taken,  that  this  was  mere 
matter  of  opinion,  and  not  matter  of  fact,  which  could  be  ascertained 
by  inspection  or  calculation,  possibly  I  might  take  the  same  view 
of  the  case;  but  it  appears  to  me  that,  on  the  face  of  the  case,  it 
should  seem  that  Elkington's  A  must  have  been,  for  practical  pur- 
poses, a  fixed  quantity  The  quantity  of  silver  on  it  must  have  been 
fixed,  and  the  proper  material,  the  best  material  for  the  foundation 
of  such  plated  articles,  must  have  been  a  well-known  quality  in  the 
trade,  because  it  appears  that  the  prisoner  made  a  statement  with 
respect  to  the  quantity  of  silver,  and  the  quality  of  the  foundation, 
with  the  intent  to  defraud.  It  appears  that  the  persons  who  made 
the  advances  were  thereby  defrauded,  and  thereby  induced  to  make  the 
advances,  and  the  jury  have  found  that  the  statements  were  known 
by  the  prisoner  to  be  untrue,  and  that  in  consequence  of  those  state- 
ments he  obtained  the  money  mentioned  in  the  indictment.  It  ap- 
pears to  me  that  for  all  practical  purposes  that  ought  to  be  taken 
to  be  a  sufficient  fact,  coming  within  the  region  of  assertion  and  cal- 
culation, and  not  mere  opinion,  and  that  it  should  be  considered  as  a 


522  CHEATING   AND   FALSE   PRETENSES.  (Ch.   15 

false  pretense.     Well,  then,  the  statute  says — "obtain  from  any  other 
person   any  chattel,   money,   or   valuable   security."     It   is   found   in 
this  case  that  the  money  was  obtained.     If  the  matter  was  a  simple 
commendation  of  the  goods,  without  any  specific  falsehood  as  to  what 
they  were — if  it  was  entirely  a  case  of  one  person  dealing  with  an- 
other in  the  way  of  business,  who  might  expect  to  pay  the  price  of 
the  articles  which  were  offered  for  the  purpose  of  pledge  or  sale, 
and  knew  what  they  were — I  apprehend  it  would  have  been  easily 
disposed  of  by  the  jury,  who  were  to  pass  an  opinion  upon  the  sub- 
ject, acting  as  persons  of  common  sense  and  knowledge  of  the  world, 
and  abstaining  from  coming  to  any  such  conclusion  as  that  praise  of 
that  kind   should  have  the  effect  of  making  the  party  resorting  to 
it  guilty  of  obtaining  money  on  a  false  pretense.    I  say  nothing  on  the 
effect  of  a  simple  exaggeration,  except  that  it  appears  to  me  it  would 
be  a  question  for  the  jury  in  each  case  whether  the  matter  was  such 
ordinary  praise  of  the  goods   (dolus  bonus)   as  that  a  person  ought 
not  to  be  taken  in  by  it,  or  whether  it  was  a  misrepresentation  of  a 
specific  fact  material  to  the  contract  and  intended  to  defraud,  and 
did  defraud,  and  by  which  the  money  in  question  was  obtained.    Well, 
then  there  is  the  latter  part  of  the  section — "with  intention  to  cheat 
and  defraud  any  person  of  the  same."     It  must  be  with  the  intent  to 
cheat  and  defraud  the  person  of  the  same.     I  am  unable  to  bring 
my  mind  to  any  anxiety  to  protect  persons  who  make  false  pretenses 
"with  intent  to  cheat  and  defraud."     It  was  stated  in  the  evidence 
by  the  prosecutor,  "I  would  have  advanced  nothing  but  for  the  mis- 
representation," and  it  was  found  by  the  jury  that  the  money  was  ob- 
tained by  the  misrepresentation.     But  it  is  said  that  the  effect  of  es- 
tablishing such  a  rule  as  that  for  which  I  contend  would  be  to  in- 
terfere with  trade.     No  doubt  it  would,  and  I  think  ought  to,  prevent 
trade  being  carried  on  in  the  way  in  which  it  is  said  to  be  carried 
on.    I  cannot  help  expressing  my  regret  if  trade  is  carried  on,  and  I  do 
not  believe  it  is  generally  carried  on,  by  persons  making  false  pre- 
tenses with  the  intention  to  cheat  or  defraud  persons  of  their  money. 
I  am  far  from  wishing  to  interfere  with  the  rule  as  to  simple  com- 
mendation or  praise  of  the  articles  which  are  sold,  on  the  one  hand, 
or  to  fair  cheapening,  on  the  other.     Those  are  things  persons  may 
expect  to  meet  with  in  the  ordinary  and  usual  course  of  trade.     But 
I  cannot  help  thinking  that  people  ought  to  be  protected   from  any 
such  acts  as  those  I  have  referred  to  being  resorted  to  for  the  purpose 
and   with    intent  to  cheat   or  defraud  purchasers  of  their   money   or 
tradesmen  of  their  goods.     If  the  result  of  it  would  be  to  multiply 
prosecutions,  that  musl  be  because  we  live  in  an  age  in  which  fraud 
is   multiplied   to   a   great   extent,   and,   amongst  others,    in    this    form. 
I  agree  in  whal  the  late  Chief  Justice  Jervis  said  as  peculiarly  applica- 
to  such  a  supposed    late,  though   1  hope  not  to  ordinary  trade- 
that  if  there  be  such  a  commerce  as  requires  to  be  protected  by  the 
statute  being  limited  in  the  mode    uggested,  it  ought  to  be  made  honest 


Sec.  4)  THE    PRETENSE.  523 

and  conform  to  the  law,  and  not  the  law  bent  for  the  purpose  of 
allowing  fraudulent  commerce  to  go  on.  I  cannot  help  thinking, 
therefore,  upon  the  plain  construction  of  St.  7  &  8  Geo.  IV,  c.  29, 
§  53,  that  the  prisoner  in  this  case,  having  fraudulently  represented 
that  there  was  a  greater  amount  of  silver  in  the  articles  pledged  and 
that  there  was  a  superior  foundation  of  metal,  that  being  untrue  to 
his  knowledge,  for  the  purpose  of  defrauding  the  prosecutors  of 
their  money,  which  he  accordingly  obtained,  he  was  therefore  indict- 
able, and  that  the  conviction  ought  to  be  affirmed.2 
Conviction  quashed.8 


REGINA  v.  ARDLEY. 

(Court  for  Crown  Cases  Reserved,  1871.    L.  R.  1  C.  C.  301.) 

Case  stated  by  the  Chairman  of  Quarter  Sessions  for  the  County 
Palatine  of  Durham. 

Indictment  for  obtaining  £5  and  an  Albert  chain  of  the  value  of 
7s.  6d.  by  false  pretenses. 

The  material  facts  were  as  follows: 

The  prisoner  went  into  the  shop  of  the  prosecutor,  who  was  a 
watchmaker  and  jeweler,  and  stated  that  he  was  a  draper,  and  was 
£5  short  of  the  money  required  to  make  up  a  bill,  and  asked  the 
prosecutor  to  buy  an  Albert  chain  which  he  (the  prisoner)  was  then 
wearing.  The  prisoner  said:  "It  is  lo-carat  fine  gold,  and  you  will 
see  it  stamped  on  every  link.  It  was  made  for  me,  and  I  paid  nine 
guineas  for  it.  The  maker  told  me  it  was  worth  £5  to  sell  as  old 
gold."  The  prosecutor  bought  the  chain,  relying,  as  he  said,  on  the 
prisoner's  statement,  but  also  examining  the  chain,  and  paid  £5 
for  it,  and  gave  also  to  the  prisoner  in  part  payment  a  gold  Albert 
chain  valued  at  7s.  6d.  The  prisoner's  chain  was  marked  "15  ct." 
on  every  link,  and  in  a  very  short  time  afterwards  he  (the  prisoner) 
was  apprehended,  and  then  wore  another  Albert  chain  of  a  char- 
acter similar  to  that  sold  to  the  prosecutor;  this  also  being  mark- 
ed "15  ct."  on  every  link.  It  was  proved  that  "15  ct."  was  a  hall- 
mark used  in  certain  towns  in  England,  and  placed  on  articles  made 
of  gold  of  that  quality,  and  that  chains  when  assayed  are  generally 
found  to  be  one  grain  less  than  the  mark,  exceptionally  two  grains. 

2  Bramwell,  B.,  delivered  a  concurring  opinion. 

3  See,  also,  People  v.  Jacobs,  35  Mich.  36  (1876) ;  State  v.  Paul,  69  Me.  215 
(1879);    People  v.  Morphy,  100  Cal.  84.  34  Pac.  623  (1S93). 

"It  is  not  the  law  of  this  state,  as  we  understand  it,  that  a  man  may  be 
guilty  of  larceny  by  false  pretense  because  ht:  has  not  title  to  either  the  real 
estate  or  personal  property  which  he  undertakes  to  sell,  or  says  he  o\vns: 
provided  he  vests  good  title  in  the  purchaser  at  the  time  he  pays  the  con- 
sideration for  the  property."  Parker,  C.  J.,  in  People  v.  Wheeler,  169  N.  Y 
493,  62  N.  E.  572  (1902). 


524  CHEATING   AND   FALSE   PRETENSES.  (Cll.    15 

The  chain  bought  by  the  prosecutor  was  assayed,  and  found  to  be 
of  a  quality  a  trifle  better  than  6-carat  gold,  and  of  the  value  in 
gold  of  £2.  2s.  9d.  It  was  proved  that,  had  it  been  15-carat  gold, 
it  would  have  been  worth  £5.  10s.  Adding  the  charge  for  what  is 
called  "fashion"  or  "make,"  and  the  price  of  a  locket  attached,  the 
chain  bought  by  the  prosecutor  would  be  sold  for  £3.  0s.  3d.;  but, 
had  it  been  15-carat,  it  would  have  been  sold  for  £9.  There  were 
no  drapery  goods  or  anything  connected  with  such  trade  found  on 
the  prisoner;  but,  when  arrested,  he  had  in  his  possession  a  license 
to  sell  plate,  two  watches,  two  white-metal  watch  guards,  and  the 
chain  obtained  from  the  prosecutor. 

The  chairman  was  asked  by  the  counsel  for  the  prisoner  to  stop 
the  case,  on  the  authority  of  Reg.  v.  Bryan,  Dears.  &  B.  C.  C.  265, 
but  declined  to  do  so,  and  left  the  case  to  the  jury,  who  found  the 
prisoner  guilty,  and  said  they  found  that  the  prisoner  knew  that 
he  was  falsely  representing  the  quality  of  the  chain  as  15-carat  gold. 

Bovill,  C.  J.1  The  question  which  we  have  to  consider  in  this 
case  is  whether  there  was  evidence  to  go  to  the  jury  on  which  they 
could  find  the  prisoner  guilty  of  obtaining  money  under  false  pre- 
tenses. I  think  there  clearly  was  evidence,  and  that  it  would  have 
been  quite  impossible  for  the  learned  chairman  with  any  propriety 
to  stop  the  case.  There  were,  in  addition  to  the  representations 
as  to  the  quality  of  the  gold,  distinct  statements  of  matters  of  fact, 
and  there  was  evidence  of  the  falsehoods  of  these  statements.  The 
prisoner  stated  that  he  was  a  draper,  and  was  £5  short  of  the  mon- 
ey required  to  make  up  a  bill.  But  there  were  no  drapery  goods, 
nor  anything  connected  with  such  trade,  found  on  the  prisoner; 
but,  when  arrested,  he  had  in  his  possession  a  license  to  sell  plate, 
two  watches,  two  white-metal  watch  guards,  and  the  chain  obtain- 
ed from  the  prisoner,  and  he  wore  another  Albert  chain  of  a  char- 
acter similar  to  that  sold  to  the  prosecutor,  this  also  being  marked 
15-carat  gold  on  every  link.  Looking,  therefore,  at  the  whole  of 
the  evidence,  there  is  sufficient  ground  on  which  the  finding  of  the 
jury  may  be  supported  and  the  conviction  sustained. 

But  the  jury  have  further  found  that  the  prisoner,  when  he  rep- 
resented the  chain  to  be  15-carat  gold,  knew  this  representation  to 
be  false.  And  tlie  question  whether  the  conviction  can  lie  support- 
ed upon  that  finding  alone  stands  upon  a  somewhat  different  foot- 
ing. The  cases  have  drawn  nice  distinctions  between  matters  of 
fact  and  matters  of  opinion,  statements  of  specific  facts  and  mere 
ited  praise.  It  is  difficult  for  us,  sitting  here  as  a  court, 
to  determine  conclusively  what  is  fact  and  what  is  opinion,  what  is 
a  specific  statemenl  and  what  exaggerated  praise.  These  arc  ques- 
tions   for  the   jury   to   decide.      And   the  prisoner  has   this  additional 

i  Arguments  of  counsel  and  concurring  opinions  of  Wllles  ami  Byles,  jj., 
nini  Channel!  and  Plgott,  BB ,  are  omitted. 


Sec.  4)  THE    PRETENSE.  52." 

security,  that  the  jury  have  to  consider  not  only  whether  the  state- 
ments made  are  statements  of  fact,  but  also  whether  they  are  made 
with  the  intention  to  defraud. 

The  case  which  has  been  most  pressed  upon  us  is  Reg.  v.  Bryan, 
Dears.  &  B.  C.  C.  2G5.  The  representation  in  that  case  was  that 
certain  plated  spoons  were  "equal  to  Elkington's  A."  Prima  facie 
that  representation  would  seem  to  be  a  mere  matter  of  opinion,  and 
the  court  held  that  it  was  not  sufficient  to  support  the  conviction.  But 
many  of  the  judges  expressed  the  opinion  that  there  might  well  be 
cases  in  which  misrepresentations,  though  as  to  quality,  would  be 
within  the  statute.  Cockburn,  C.  J.,  says:  "If  the  person  had  rep- 
resented these  articles  as  being  of  Elkington's  manufacture,  when 
in  point  of  fact  they  were  not,  and  he  knew  it,  that  would  be  an  en- 
tirely different  thing."  Pollock,  C.  B.,  says:  "I  think  if  a  trades- 
man or  a  merchant  were  to  concoct  an  article  of  merchandise  ex- 
pressly for  the  purpose  of  deceit,  and  were  to  sell  it  as  and  for  some- 
thing very  different,  even  in  quality,  from  what  it  was,  the  statute 
would  apply."  It  is  plain  that  these  learned  judges  considered  that 
a  specific  representation  of  quality,  if  known  to  be  false,  would  be 
within  the  statute.  Coleridge,  J.,  expressly  concurs  in  the  observa- 
tions of  Pollock,  C.  B.  Erie,  J.,  at  the  close  of  his  judgment,  says : 
"No  doubt  it  is  difficult  to  draw  the  line  between  the  substance  of 
the  contract  and  the  praise  of  an  article  in  respect  of  a  matter  of 
opinion.  Still  it  must  be  done,  and  the  present  case  appears  to  me 
not  to  support  a  conviction,  upon  the  ground  that  there  is  no  af- 
firmation of  a  definite  triable  fact  in  saying  the  goods  were  equal 
to  Elkington's  A,  but  the  affirmation  is  of  what  is  mere  matter  of 
opinion,  and  falls  within  the  category  of  untrue  praise  in  the  course 
of  a  contract  of  sale,  where  the  vendor  has  in  substance  the  article 
contracted  for,  namely,  plated  spoons."  Crompton,  J.,  also  consider- 
ed that  the  statute  applies  "when  the  thing  sold  is  of  an  entirely 
different  description  from  what  it  is  represented  to  be."  Willes, 
J.,  who  dissented  from  the  judgment  of  the  court,  goes  the  whole 
length  of  saying  that  a  representation  as  to  quality,  if  known  to  be 
false,  is  enough  to  support  a  conviction.  And  Bramwell,  B.,  leans 
to  the  same  opinion. 

Applying  these  observations  to  the  present  case,  the  statement 
here  made  is  not  in  form  an  expression  of  opinion  or  mere  praise. 
It  is  a  distinct  statement,  accompanied  by  other  circumstances,  that 
the  chain  was  15-carat  gold.  That  statement  was  untrue,  was  known 
to  be  untrue,  and  was  made  with  intent  to  defraud.  How  does  that 
differ  from  the  case  of  a  man  who  makes  a  chain  of  one  material 
and  fraudulently  represents  it  to  be  of  another?  Therefore,  wheth- 
er we  look  at  the  whole  of  the  evidence,  or  only  at  that  which  goes 
to  show  the  quality  of  the  chain,  the  conviction  is  good.  The  case 
differs   from  Reg.  v.  Bryan,   Dears.   &  B.   C.   C.  265,  because  here 


526  CHEATING  AND   FALSE   PRETENSES.  (Ch.   15 

there  was  a  statement  as  to  a  specific  fact  within  the  actual  knowl- 
edge of  the  prisoner,  namely,  the  proportion  of  pure  gold  in  the 
chain. 

Conviction  affirmed.2 


SECTION  5.— EFFECTIVENESS  OF  THE  PRETENSE. 


REGINA  v.  ENGLISH. 

(Kent  Assizes,  1872.     12  Cox,  C  C.  171.) 


False  pretenses.3  The  prosecutor  was  a  brickmaker,  and  in  con- 
sequence of  an  advertisement  issued  by  the  defendant  went  down 
to  see  the  field,  and  was  shown  over  it  and  inspected  the  earth  and 
soil  of  the  field,  and  also  examined  a  clump  of  bricks  upon  the 
field,  said  to  have  been  made  out  of  the  earth  and  soil  of  the 
field;  but  evidence  was  given  of  the  specific  false  pretenses  alleged, 
and  he  swore  he  was  induced  by  means  of  these  representations, 
and  in  the  belief  that  they  were  true,  to  enter  into  the  agree- 
ment. And  evidence  was  also  given  to  show  that  they  were  to  the 
knowledge  of  the  defendant  false,  and  intended  to  deceive  and  defraud. 
It  was  further  sworn  by  the  prosecutor  and  his  witnesses  that  the 
bricks  shown  to  him  as  made  from  the  soil  of  the  field  had  in  fact 
been  made  from  other  earth,  as  known  to  the  defendant. 

The  case  had  been  previously  tried  before  Bramwell,  B.,  when 
the  jury  were  discharged. 

At  the  close  of  the  case — 

Cockburn,  C.  J.  (Bramwell,  B.,  having  previously  directed  the 
jury  in  the  same  way).  There  is  a  case  for  the  jury  on  the  counts 
which  charge  that  the  prosecutor,  by  means  of  the  false  pretenses, 
was  induced  to  enter  into  the  agreement.  The  jury  must  be  satis- 
fied, however,  not  only  that  the  pretenses  were  false  and  fraudu- 
lent, but  that  the  prosecutor  was  induced  by  means  of  them  to  enter 
into  the  agreement.4  The  prosecutor,  it  is  true,  was  a  brickmak- 
er, and  examined  the  soil  of  the  field;  but  the  charge  is  that  false 
and  fraudulent  representations  were  made  to  him  of  specific  mat- 
ters of  fact  which  would  be  material  in  influencing  his  judgment, 
and,  if  that  were  so,  the  indictment  would  be  sustained. 

The    jury,    after   a   long   consideration,    said    that   they    found    the 

Bee,  alio,  t^c.  v.  Roebuck,  Donrs.  &  ts.  21  (1865);  Rpr.  v.  Ross  Bell,  C.  o. 
•jus  (1800);    State  v.  Tomlln,  2!)  N.  J.  Law,  18  (1880);    State  v.  Burke,  108 
N.  (l.  7.v>,  12  s.   M   1000  (1881). 
■  The  Indlctmenl  is  omitted. 

<  Bee  Bex  v.  Dale,  7  C.  &  r   .'.:.-  M83G);  Reg.  v.  Mills,  7  Oox,  C.  C  2«3 
0857). 


Sec.  5)  EFFECTIVENESS  OF  THE  PRETENSE.  527 

pretenses  false  and  fraudulent,  but  that  the  prosecutor  was  not  in- 
fluenced solely  by  means  of  the  pretenses. 

Cockburn,  C.  J.  That  finding  is  not  sufficient.  Was  he  partly 
influenced  by  them?  that  is,  did  they  materially  affect  his  judgment? 

The  jury  said  they  did.  They  turned  the  balance,  so  to  speak, 
in   his  mind. 

Cockburn,  C.  J.  Then  that  is  sufficient  to  sustain  the  indict- 
ment, and  a  verdict  must  be  entered  of 

Guilty. 


PEOPLE  v.  BIRD. 
(Supreme  Court  of  Michigan,  1901.     126  Mich.  631,  86  N.  W.  127.) 

Theodore  Bird,  Theodore  Williams,  Jay  Lawrence,  and  Charles  Ray 
were  convicted  under  an  information  charging  conspiracy  to  defraud 
and  false  pretenses.1 

The  second  count  is  one  for  false  pretenses,  and  sets  forth  the  spe- 
cific methods  resorted  to  by  the  respondents  to  accomplish  their  object. 
The  methods,  in  substance,  were  that  the  respondents  represented  to 
said  Curtis  that  they  were  the  apostles  of  Christ;  that  said  Curtis  and 
they  were  to  be  the  judges  of  the  people  in  that  part  of  the  country; 
that  the  son  of  Curtis  was  to  be  Christ  in  his  second  coming;  that 
they  (respondents)  were  sent  by  the  Lord  to  tell  Curtis  these  things; 
and  that  the  Lord  required  of  him  to  pay  to  them  $300,  to  make  a  home 
for  them.    The  respondents  were  convicted. 

Grant,  J.  It  is  urged  that  the  pretenses  were  so  absurd  and  irra- 
tional that  they  do  not  come  within  the  statute.  This  question  has 
been  adjudicated  against  the  contention  of  the  respondents  in  People 
v.  Summers,  115  Mich.  537,  73  N.  W.  818,  where  many  authorities 
upon  the  point  are  cited.  Mr.  Curtis,  from  whom  the  respondents  ob- 
tained the  money,  was  evidently  an  ignorant  and  weak  man.  It  ap- 
pears from  his  own  testimony  and  from  other  evidence  that  his  mind  is 
unbalanced  upon  the  subject  of  religion.  The  statute  is  designed  for 
the  protection  of  such,  and  for  the  punishment  of  those  who  will  take 
advantage  of  their  weakness  to  perpetrate  fraud.2  \ 

It  is  next  urged  that,  though  the  respondents  held  peculiar  views, 
yet  that  they  were  honest  in  their  belief.  We  agree  with  counsel  that 
their  views  were  peculiar.  Whether  they  were  honest  in  them  was  a 
question  for  the  jury.3     The  court,  in  very  clear  language,  instructed 

i  Part  of  this  case  is  omitted. 

2  Accord:  Johnson  v.  State,  36  Ark.  212  (18S0) ;  Miller  v.  People,  22  Colo. 
530,  45  Pac.  408  (1896) ;  Cowen  v.  People.  14  111.  348  (1853) ;  Lefler  v.  State.  153 
Ind.  82,  54  N.  E.  439,  45  L.  R.  A.  424,  74  Am.  St.  Rep.  300  (1899);  State  v. 
Fooks,  65  Iowa.  196,  21  N.  W.  561  (1884);  Smith  v.  State,  55  Miss.  513 
(187S) ;  Oxx  v.  State,  59  N.  J.  Law,  99,  35  Atl.  646  (1896) ;  People  v.  Cole,  65 
Hun.  624.  20  N.  Y.  Supp.  505  (1892);  Watson  v.  State,  16  Lea  (Tenn.)  604 
(1886). 

»  Compare,  Penny  v.  Hanson,  16  Cox,  C.  C.  173. 


528  CHEATING   AND   FALSE   PRETENSES.  (Cll.    15 

the  jury  that,  if  they  were  honest  in  their  religious  belief,  no  matter 
how  misguided  they  might  be,  they  could  not  be  convicted.  The  evi- 
dence is  that  Bird  and  Williams  were  very  active  in  preaching  their 
doctrines  to  Mr.  Curtis,  that  it  was  his  duty  to  give  them  money,  and 
that  the  Lord  had  so  directed.  We  think,  also,  that  there  was  evi- 
dence from  which  the  jury  might  reasonably  infer  that  respondents 
Lawrence  and  Ray  were  parties  to  the  fraud,  although  they  did  not 
make  direct  representations  to  obtain  the  money. 

We  find  no  error  in  the  record,  and  the  conviction  is  affirmed. 

The  other  justices  concurred. 


REGINA  v.  GARDNER. 

(Court  for  Crown  Cases  Reserved,  1856.    Dears.  &  B.  41.) 

The  evidence  on  the  part  of  the  prosecution,  as  far  as  is  material 
for  the  purpose  of  this  case,  was  that  on  the  13th  day  of  November 
last  the  defendant,  wearing  the  dress  of  a  naval  officer,  engaged  a 
lodging  of  Ellen  Henrietta  Brunsden  (the  prosecutrix)  at  the  rate 
of  10  shillings  per  week;  that  on  the  17th  day  of  November  the  de- 
fendant expressed  himself  to  prosecutrix  as  being  comfortable,  and 
that  he  should  be  likely  to  remain  some  time,  and  stated  that  he  was 
paymaster  of  the  Duke  of  Wellington,  and  his  name  was  De  Lancy ; 
that  the  defendant  continued  a  lodger  till  the  25th  of  November,  and 
then  expressed  a  wish  to  become  a  boarder,  and  an  arrangement  was 
accordingly  entered  into  that  he  should  become  a  boarder  at  a  guinea 
a  week;  that  the  prosecutrix  supplied  the  defendant  with  board,  con- 
sisting of  cooked  meat,  tea,  sugar,  bread,  butter,  cheese,  and  beer,  for 
the  six  days  following,  but  the  defendant  did  not  pay  her  anything  for 
the  lodging  or  board.1 

Ribton,  for  the  prisoner.  The  conviction  was  wrong.  It  is  im- 
portant to  observe  the  dates.  When  the  false  statement  was  made, 
neither  money,  chattel,  nor  valuable  security  was  obtained  by  it ;  and 
obtaining  lodging  by  a  false  pretense  is  not  an  offense  within  the  stat- 
ute. On  the  -'"'th  November,  when  the  contract  to  board  was  obtained, 
no  false  pretense  was  made. 

Coleridge,  J.  Would  it  not  be  a  question  for  the  jury  whether 
was  not  a  ci int inning  false  pretense? 

Ribton.  To  obtain  a  contract  by  a  false  pretense  is  not  within  the 
act.  It  is  not  obtaining  goods.  Here,  if  anything  besides  the  lodging 
was  obtained  by  the  false  pretense,  it  was  not  food,  but  simply  a  new 
contract  to  supply  board,  and  that  would  not  be  within  the  statute. 
The  board  mighl  have  been  supplied,  not  in  consequence  of  the  false 
pretense  made  when  the  contract  for  the  lodging  was  obtained,  but  in 

i  Part  of  this  ease  la  omitted. 


Sec.  5)  EFFECTIVENESS   OF   THE    PRETENSE.  529 

consequence  of  the  prisoner's  manners  and  conduct  after  that  time, 
and  whilst  he  was  a  lodger. 

Coleridge,  J.  Yes;  but  your  point  is  that  there  was  no  evidence 
to  go  to  the  jury,  even  supposing  the  interval  between  the  false  pre- 
tense and  the  contract  had  only  been  an  hour. 

Ribton.  It  is  quite  clear  that  to  obtain  lodging  alone  would  not  be 
within  the  statute.  Here  the  contract  is  for  board  and  lodging  united, 
and  it  is  doubtful  whether  in  any  case  obtaining  board  and  lodging 
would  be  within  the  statute.  It  would  always  be  difficult  to  separate 
the  two,  so  as  to  show  that  the  articles  of  food  were  obtained  by  means 
of  the  false  pretense ;  but  here,  at  all  events,  the  evidence  fails  alto- 
gether to  connect  the  obtaining  of  the  food  with  the  false  pretense. 

Horn,  for  the  crown  It  is  indisputable  law  that  the  intervention 
of  a  contract  is  no  answer  to  a  charge  of  obtaining  goods  by  false 
pretenses,  if  the  contract  be  part  of  the  fraud.  Here  the  prisoner  has 
obtained  goods  by  means  of  his  false  pretenses,  and  the  fact  that  the 
contract  was  to  pay  for  the  board  and  lodging  together  does  not  make 
it  less  an  obtaining  of  goods. 

Jervis,  C.  J.  The  difficulty  in  the  case  of  contracts  is,  where  the 
party  deceived  gets  not  the  consideration  which  he  expects,  but  some- 
thing like  it. 

Horn.  In  this  case  the  false  pretense  is  clearly  proved.  It  was  a 
continuing  pretense,  and  the  prosecutrix,  acting  upon  it,  was  eventually 
induced  to  supply  the  prisoner  with  board,  as  well  as  lodging.  It  is 
objected  that  lodging  is  not  within  the  statute.  Land  is  not  within 
the  statute ;  but  suppose,  by  a  false  pretense,  I  get  an  estate  and  a  purse 
of  gold?  The  articles  of  food  which  the  prisoner  obtained  were  chat- 
tels within  the  meaning  of  the  statute;  and  the  fact  that  the  prisoner 
gained  lodging  as  well  as  board  cannot  make  any  difference.  The 
question  whether  the  food  was  obtained  by  the  false  pretense  was  for 
the  jury,  and  they  have  found  that  it  was. 

Ribton  replied. 

Jervis,  C.  J.  In  this  case,  which  was  argued  before  us  on  Saturday 
last,  the  court  took  time  to  consider,  principally  with  a  view  of  first 
taking  into  consideration  the  cases  of  Regina  v  Roebuck  and  Regina 
v.  Burgon,  which  have  just  been  disposed  of.  It  was  an  indictment 
for  obtaining  goods  under  false  pretenses,  the  circumstances  being 
that  the  prisoner  represented  himself  to  be  the  paymaster  of  the  Duke 
of  Wellington,  of  the  name  of  De  Lancy,  upon  which  he  made  with 
the  prosecutrix  a  contract  for  board  and  lodging  at  the  rate  of  one 
guinea  a  week,  and  he  was  lodged  and  fed  as  the  result  of  the  con- 
tract, in  consequence  of  the  engagement  so  entered  into  upon  that 
which  was  found  to  be  a  false  pretense;  and  the  question  which 
was  submitted  to  us  was  whether  it  was  a  false  pretense  within 
the  statute,  or,  rather,  whether  the  conviction  was  right?  That  we 
have  considered,  and  on  consideration  we  are  of  opinion  that  the  con- 
viction was  not  right,  because  we  think  that  the  supply  of  articles,  as 
Mik.Cp.L.—  34 


530  CHEATING  AND   FALSE   PRETENSES.  (Ch.   15 

it  was  said,  upon  the  contract  made  by  reason  of  the  false  pretense, 
was  too  remotely  the  result  of  the  false  pretense  in  this  particular  in- 
stance to  become  the  subject  of  an  indictment  for  obtaining  those 
specified  goods  by  false  pretenses.  We  therefore  think  the  convic- 
tion should  be  reversed. 
Conviction  quashed2. 


REGINA  v.  BUTTON. 
(Court  for  Crown  Cases  Reserved,  1900.     [1900]  2  Q.  B.  597.) 

Case  stated  by  the  Recorder  of  Lincoln. 

The  prisoner  was  charged  with  attempting  to  obtain  goods  by  false 
pretenses.  * — 

On  August  26,  1899,  there  were  athletic  sports  at  Lincoln,  for  which 
prizes  were  given.  Among  the  contests  were  a  120-yard  race  and  a 
440-yard  race,  in  respect  of  each  of  which  a  prize  was  given  of  the 
value  of  10  guineas. 

Among  the  names  sent  in  for  these  two  contests  was  the  name  of 
"Sims,  C,  Thames  Ironworks  A.  C,"  and  two  written  forms  of  entry 
were  sent  in  to  the  secretary  of  the  sports,  containing  (as  appeared 
to  be  usual)  a  statement  as  to  the  last  four  races  in  which  Sims  had 
run,  together  with  a  statement  that  he  had  never  won  a  race.  These 
forms  were  not  sent  by  Sims,  nor  were  they  in  his  handwriting,  and 
he  knew  nothing  of  them.  They  were,  however,  signed  in  his  proper 
name  and  with  his  true  address,  and  contained  a  correct  account  of 
his  last  four  performances.  The  forms  were  proved  to  be  not  written 
by  the  prisoner. 

The  performances  of  Sims  were  very  moderate,  and,  as  a  fact,  he 
was  only  a  moderate  runner,  and  as  a  result  the  supposed  Sims  was 
given  by  the  handicapper  of  the  sports  a  start  of  11  yards  in  the 
120-yard  race  and  a  start  of  33  yards  in  the  440-yard  race. 

Sims  was  ill  at  Erith  when  the  races  were  run,  and  was  not  at 
Lincoln  at  all,  and  he  was  personated  by  the  prisoner,  who  was  a 
fine  performer  and  won  both  contests  very  easily. 

The  suspicion  of  the  handicapper  being  aroused,  he  asked  the  pris- 
oner, after  the  120-yard  race,  whether  he  was  really  Sims,  whether 
the  performance  given  in  the  entry  form  was  really  his,  and  whether 
he  had  never  won  a  race.  To  these  questions  the  prisoner  answered 
that  he  was  Sims,  thai  the  performances  were  his  own,  and  that  he 
had  never  won  a  race.  All  these  statements  were  untrue,  and  in  par- 
ticular he  had  won  a  race  al  Erith  in  his  own  name.  The  handicapper 
ailed  as  a  win p      ,  and  swore  that  he  would  not  have  given  the 

> Accord:  Reg    v.  Bryan,  '2.  Post  &  V.  587  (1862).    Cf.  Keg.  v.  Martin,  I. 
R.   i   C.  C.  56  (1867). 


Sec.  5)  EFFECTIVENESS   OF   THE    PRETENSE.  531 

prisoner  such  favorable  starts  if  he  had  known  his  true  name  and  per- 
formances. 

Matiif.w,  J.  The  conviction  in  this  case  must  be  upheld.  The 
case  of  Reg.  v.  Lanier,  14  Cox,  C.  C.  497,  is  relied  upon  as  an  au- 
thority for  the  defendant.  In  that  case  the  question  was  one  of  fact. 
and  the  Common  Serjeant  directed  the  jury  according  to  his  impres- 
sion of  the  view  of  the  law  taken  by  Stephen,  J.,  whom,  it  appears 
from  the  report,  he  had  consulted;  but  that  case  is  contrary  to  the 
ruling  of  Lord  Lindley  in  a  case  tried  before  him  at  the  Nottingham 
Assizes  (Reg.  v.  Dickenson,  Roscoe's  Criminal  Evidence  [12th  Ed.] 
432,  433,  2  Russell  on  Crimes  [6th  Ed.]  p.  511,  book  3,  c.  32,  §  2, 
Times  of  July  26,  1879),  and  I  am  clearly  of  opinion  that  Lord  Lindley 
was  right.  The  questions  to  be  decided  in  the  present  case  were  pure 
questions  of  fact,  namely,  whether  the  intention  of  the  defendant,  when 
he  entered  for  the  races,  was  to  obtain  the  prizes,  and  whether  he  made 
the  representations  with  that  intention.  It  appears  from  the  case  that 
he  pretended  to  be  a  man  who  had  never  won  a  foot  race,  and'  he  was 
handicapped  on  the  faith  of  that  statement,  as  is  shown  by  the  evi- 
dence given  by  the  handicapper;  but  it  also  appears  from  the  case 
that  his  statement  was  false,  for  he  had  won  races.  Then  it  was  sug- 
gested that  he  competed  in  the  name  of  Sims,  as  it  is  put  in  the  case, 
"for  a  lark";  but  that  question  was  for  the  jury,  and  they  have  nega- 
tived the  suggestion.  It  was  also  contended  that  his  coming  in  first 
in  the  races  was  owing  to  his  own  good  running;  but  it  was  also 
owing,  in  part  at  least,  to  the  false  pretenses,  for  by  means  of  the 
false  pretenses  he  obtained  a  longer  start  than  he  would  have  had,  if 
his  true  name  and  performances  had  been  known.  It  is  also  said  that 
some  other  act  had  to  be  done  in  order  to  make  the  offense  complete, 
and  that  he  could  not  rightly  be  convicted,  because  it  was  not  shown 
that  he  had  applied  for  the  prizes,  and  that  the  criminal  intention  was 
exhausted.  The  argument  is  exceedingly  subtle,  but  unsound.  In  fact, 
he  was  found  out  before  he  had  the  opportunity  of  applying  for  the 
prizes,  as  no  doubt  he  otherwise  would  have  done.  The  pretenses 
which  the  prisoner  made  were  not  too  remote,  and  the  conviction  was 
good.1 

Conviction  affirmed. 


PEOPLE  v.  WHITEMAN. 

(Supreme  Court  of  New  York,  1902.    72  App.  Div.  90,  76  N.  T.  Supp.  211.) 

Laughlin,  J.  On  the  15th  day  of  November,  1900,  the  defend- 
ant was  presented  with  a  bill  for  $35.45  for  board  and  lodging  at  the 
Hotel  Navarre,  where  he  had  previously  registered  under  the  name 

i  Argument  of  counsel  and  concurring  opinion  of  Wright,  J.,  are  omitted. 
Lawrence,  Kennedy,  and  Darling,  J  J.,  concurred. 


532  CHEATING   AND   FALSE   PRETENSES.  (Ch.    15 

of  John  D.  Wilson.  He  stepped  up  to  the  cashier's'  window  and 
handed  the  bill  to  the  cashier,  together  with  a  check  for  $100,  pur- 
porting to  have  been  drawn  by  Arthur  Dolan,  Jr.,  on  the  Girard  Trust 
Company  of  Philadelphia,  dated  that  day,  and  payable  to  the  order 
of  John  D.  Wilson,  and  so  indorsed.  He  made  no  express  repre- 
sentation and  was  asked  no  question.  The  cashier  delivered  to  him 
$64.55,  the  difference  between  the  face  of  the  check  and  his  bill.  The 
check  was  in  the  due  course  of  business  forwarded  to  Philadelphia 
for  collection,  and  returned  marked  "No  account."  The  defendant 
remained  at  the  hotel  a  couple  of  days  after  giving  the  check,  but 
departed  before  it  was  returned  dishonored.  It  was  shown  that  no 
person  by  the  name  of  Arthur  Dolan,  Jr.,  had  had  an  account  with 
the  Girard  Trust  Company  within  three  years.  The  cashier  knew 
nothing  of  the  defendant,  except  that  he  had  registered  at  the  hotel 
under  the  name  of  John  D.  Wilson.  Upon  these  facts  the  defendant 
was  arrested  and  subsequently  indicted. 

The  indictment  contains  two  counts,  one  charging  grand  larceny 
in  the  second  degree,  under  section  528  of  the  Penal  Code,  in  obtaining 
the  money  "by  color  or  aid  of  fraudulent  or  false  representation  or 
pretense,"  with  "intent  to  deprive  or  defraud"  the  proprietor  of  the 
hotel  whose  money  was  thus  obtained,  and  the  other  charging  grand 
larceny  in  the  second  degree,  under  section  529  of  the  Penal  Code, 
in  obtaining  the  money  willfully  and  with  intent  to  defraud  the  owner 
"by  color  or  aid"  of  the  check,  knowing  "that  the  drawer  or  maker 
thereof"  was  "not  entitled  to  draw  on  the  drawee  for  the  sum  speci- 
fied therein,  *  *  *  although  no  express  representation"  was 
"made  in  reference  thereto." 

It  was  shown  that  the  defendant,  on  being  arrested  and  informed 
that  the  arrest  was  on  a  warrant  "on  a  bad  check  in  the  Hotel  Na- 
varre," said  to  the  officer  on  the  way  to  the  station  house:  "Now, 
tn  straighten  this  matter  out.  I  can  get  money  and  make  good 
heck.  You  have  no  feeling  against  me,  have  you?"  No  other 
material  evidence  was  introduced  by  the  people,  and  the  defendant 
did  not  take  the  stand. 

There  can  be  no  doubt,  we  think,  that  the  evidence  is  wholly  in- 
sufficient to  warrant  a  conviction  under  secti  n  ''.">  of  the  Penal  Code. 
The  evidence  docs  not  fairly  justify  the  inference  that  the  rlefendanl 
willfully  with  intent  to  defraud  obtained  the  money  on  the  check  with 
knowledge  that  Dolan  was  not  entitled  to  draw  against  the  Phila- 
ia  hank  for  the  amount  thereof.  The  mosl  that  can  be  inferred 
from  this  evidence  as  tending  to  show  a  violation  of  the  section  lastly 

referred  to  is  thai  defendant  was  known  tn  Dolan  by  an  assumed  name, 

and  that  the  check  was  made  payable  to  his  order  under  an  assumed 
name,  in  which  he  indorsed  it  and  obtained  the  money.  This  is  nol 
necessarily  irtconsi  tent  with  his  innocence  of  the  fact  thai  Dolan 
did  nol  have  an  accounl  with  the  Girard  Trust  Company  which  was 
good  for  the  amounl  of  the  ch 


SCC.  5)  EFFECTIVENESS  OF  THE  TKETENSE.  533 

The  question  of  the  sufficiency  of  the  evidence  to  hold  the  defend- 
ant under  section  528  of  the  Penal  Code  for  obtaining  money  "by 
color  or  aid  of  fraudulent  or  false  representation  or  pretense,"  with 
intent  to  deprive  the  true  owner  thereof,  is  not  so  free  from  doubt. 
The  jury  were  doubtless  justified  in  finding  from  all  the  facts  and 
circumstances  that  he  deceived  the  cashier  with  reference  to  his  true 
name,  and  that  in  obtaining  the  money  he  falsely  represented  or  pre- 
tended that  his  true  name  was  John  D.  Wilson.  People  ex  rel.  Phelps 
v.  Court  of  Oyer  &  Terminer,  83  N.  Y.  43G,  453 ;  Fowler  v.  People, 
18  How.  Prac.  493;  Kling  v.  Irving  Nat.  Bank,  21  App.  Div.  373, 
47  N.  Y.  Supp.  528;  People  v.  Pinckney,  67  Hun,  428,  22  N.  Y. 
Supp.  118. 

If  the  facts  and  circumstances  were  such  as  to  indicate  that  the 
check  would  not  have  been  cashed  on  his  credit  if  it  had  been  pay- 
able to  his  order  by  his  true  name,  then  probably  his  conviction  would 
have  been  justified ;  but  it  does  not  appear  that  the  cashier  was  led 
by  the  fictitious  name  to  believe  that  he  was  another  individual  of 
financial  responsibility.  The  credit  was  given  to  him,  and  he  re- 
mained liable  civilly.  The  cashier  was  in  no  manner  misled,  except 
as  to  the  fact  that  he  had  registered  under  an  assumed  name.  The 
false  pretense  or  representation  with  regard  to  his  true  name  is  not 
what  deprived  the  owner  of  his  property.  The  check  was  cashed  in 
the  expectation  that  it  was  good  and  would  be  paid.  Payment  was 
not  refused  because  of  the  fictitious  name  or  indorsement  of  the  payee, 
but  solely  because  of  the  want  of  funds  to  the  credit  of  the  maker. 
The  false  pretense  or  representation,  to  constitute  larceny,  must 
have  some  bearing  upon  the  question  as  to  whether  the  check  will  be 
paid,  or  relate  to  the  responsibility  of  the  drawer  or  payee.  There 
is  nothing  to  show  or  indicate  that,  if  he  had  registered  in  his  true 
name  and  the  check  had  been  payable  in  that  name,  the  credit  would 
not  have  been  extended ;  and,  as  he  was  unknown,  it  is  manifest  that 
the  credit  was  given  to  the  individual,  and  not  on  the  strength  of  a 
name,  which  could  have  had  no  financial  strength  in  such  circum- 
stances. 

We  think  that  the  evidence  is  not  sufficient  to  sustain  his  conviction. 
The  rule  is  necessarily  quite  different  with  reference  to  the  criminal 
liability  in  having  a  personal  check  cashed  and  in  having  a  check 
payable  to  one's  order  cashed.  In  the  former  case  he  is  presumed  to 
know  the  condition  of  his  own  bank  account ;  but  where  a  person 
asks  to  have  a  check  payable  to  his  order  cashed,  while  he  guarantees 
payment,  it  is  evident  that  he  may  not  know  whether  the  account  of 
the  drawer  of  the  check  is  good,  and  he  will  not  be  liable  criminally 
unless  he  makes  some  express  material  representation  or  knows  that 
the  check  is  not  good.  People  v.  Moore,  37  Hun,  84.  Where  neither 
the  signature  nor  financial  standing  of  the  drawer  or  payee  is  known, 
there  is  no  adequate  protection  afforded,  either  by  the  civil  or  criminal 


534  CHEATING  AND   FALSE   PRETENSES.  (Ch.   15 

law,  to  one  paying  such  a  check  without  inquiry  and  obtaining  satis- 
factory representations. 

In  the  case  at  bar  the  people  have  failed  to  introduce  evidence  which 
tends  to  establish  the  guilt  of  the  defendant  beyond  a  reasonable 
doubt.  The  facts  and  circumstances  are  extremely  suspicious,  but 
they  do  not  necessarily  point  to  the  guilt  of  the  defendant  and  are 
not  inconsistent  with  his  innocence ;  and  the  conviction,  therefore, 
cannot  stand.     People  v.  Fitzgerald,  156  N.  Y.  253,  50  N.  E.  816. 

The  judgment  should  be  reversed  and  a  new  trial  granted. 

Van  Brunt,  P.  J.,  and  Patterson,  O'Brien,  and  McLaughlin, 
JJ.,  concurred. 


SECTION  6.— THE  INTENT. 


REX  v.  WILLIAMS. 

(Brecon  Assizes,  1S36.     7  Car.  &  P.  354.) 

False  pretenses.1  It  appeared  that  the  prosecutor,  Peter  Williams, 
owed  John  Williams,  the  prisoner's  master,  a  sum  of  money,  of  which 
John  Williams  could  not  procure  payment,  and  that  the  prisoner,  in 
order  to  secure  to  his  master  the  means  of  paying  himself,  had  gone 
to  the  prosecutor's  wife,  in  her  husband's  absence,  and  told  her  that 
his  master  had  bought  of  her  husband  two  sacks  of  malt,  and  had 
sent  him  to  fetch  them  away,  and  that  thereupon  the  prosecutor's 
wife  delivered  the  two  sacks  of  malt  to  the  prisoner,  who  carried 
them  to  his  master.  It  further  appeared  that  the  pretense  was  false, 
and  that  the  prisoner  knew  it  to  be  false  at  the  time  he  used  it. 

Chilton,  for  the  prisoner,  submitted  that  the  prisoner  must  be  ac- 
quitted, as  he  had  no  intent  to  defraud. 

E.  V.  Williams,  for  the  prosecution.  As  it  has  been  proved  that 
what  the  prisoner  pretended  was  false,  and  that  he  knew  it  to  be  so, 
and  that  by  means  of  such  false  pretense  he  obtained  the  goods,  he 
has  brought  himself  within  the  statute;  for  every  one  must  be  taken 
to  have  intended  the  natural  consequences  of  his  own  act.  and  the 
natural  consequence  of  the  prisoner's  act  was  to  defraud  Peter  Wil- 
liams. 

COLERIDGE,  J.  (in  summing  up).  Although  prima  facie  every  one 
must  be  taken  to  have  intended  the  natural  consequence  of  his  own 
act,  yet  if,  in  this  ou  arc  satisfied  that  the  prisoner  did  not  in- 

tend to  defraud  Peter  Williams,  but  only  to  pul  it  in  his  master's  power 
to  compel  him  to  pay  a  just  debt,  it  will  be  your  duty  to  find  him  not 

i  'Hio  Indict  rnenl  is  omitted. 


Sec.  6)  THE   INTENT.  535 

guilty.     It  is  not  sufficient  that  the  prisoner  knowingly  stated   that 
which  was  false,  and  thereby  obtained  the  malt.     You  must  be  satis- 
fied that  the  prisoner  at  the  time  intended  to  defraud  Peter  Williams. 
Verdict — Not  guilty.3 


REGINA  v.  STONE. 

(Lewes  Assizes,    1858.     1   Fost.   &   F.   311.) 

False  pretenses.  The  indictment  charged  that  the  prisoner,  being  a 
member  of  a  building  society,  obtained  from  the  society  the  sum  of 
£30  by  means  of  a  false  pretense  that  he  had  completed  two  houses, 
which  he  had  to  erect  before  he  was  entitled  to  receive  the  money. 

Ballantine,  Serjt,  in  opening  the  case,  stated  that  it  would  appear 
that  the  prisoner,  by  the  rules,  would  have  forfeited  the  houses  in 
case  they  were  not  completed  by  the  time  he  made  the  pretense,  and 
that  the  certificate  of  a  surveyor  was  necessary  to  be,  and  was  in 
fact,  obtained  before  the  money  could  be  received;  and,  this  being 
so,  the  object  of  the  false  pretense  might  be  to  avoid  the  forfeiture. 
It  appeared  to  him,  therefore,  that  the  charge  was  not  sustainable, 
and  he  proposed  to  withdraw  from  the  prosecution. 

Wildes,  J.,  assented.3 


REGINA  v.  NAYLOR. 

(Court  of  Criminal  Appeal,  18G5.     10  Cox,  C.  C.  149.) 


Case  reserved  by  Alfred  Coxon,  Deputy  Recorder  of  the  City 
of  Chester.4 

The  jury  found,  in  answer  to  the  questions  put  by  me,  that  the 
prisoner's  statement  that  Moss  wanted  the  carpets  was  false  to  his 
knowledge,  that  he  made  it  to  induce  the  prosecutrix  to  part  with  the 
carpets,  that  the  prosecutrix  was  induced  to  part  with  the  carpets 
by  reason  of  such  false  pretense,  and  that  the  prisoner,  at  the  time 
he  made  the  pretense  and  obtained  the  carpets,  intended  to  pay  the 
prosecutrix  the  price  of  them  when  it  should  be  in  his  power  to  do  so. 

Upon  this  finding  the  counsel  for  the  prisoner  contended  that  the 
jury  had  negatived  the  intention  to  defraud,  and  consequently  that 
the  prisoner  was  entitled  to  a  verdict  of  not  guilty. 

1  entertained  some  doubt  upon  the  question,  and  therefore  reserved 
it  for  the  consideration  of  the  Court  of  Crown  Cases  Reserved.  I 
directed  a  verdict  of  guilty  to  be  entered,  but  postponed  judgment, 

2  Accord:  People  v.  Thomas,  3  mil  (N.  Y.)  169  (1842);  Commonwealth  v. 
Henry,  22  Pa.  253  (1853).     Cf.  Reg.  v.  Hughes,  1  Cox,  C.  C.  244  (1845). 

3  See  accord:  Rex  v.  Wakeling,  Russ.  &  Ry.  504  (1S23). 
*  The  indictment  and  evidence  are  omitted. 


536  CHEATING   AND   FALSE   PRETENSES.  (Ch.    15 

and  the  prisoner  was  discharged  upon  recognizance  of  bail  to  appear 
and  receive  judgment. 

The  question  for  the  consideration  of  the  court  is  whether,  upon  the 
facts  above  stated  and  the  finding  of  the  jury,  a  verdict  of  guilty 
or  a  verdict  of  not  guilty  ought  to  have  been  entered. 

No  counsel  appeared  on  either  side. 

Pollock,  C.  B.  We  are  all  of  opinion  that  this  conviction  must  be 
affirmed. 

Conviction  affirmed. 


Sec.  1)  RECEIVING  STOLEN   PROPERTY.  537 

CHAPTER  XVI. 
RECEIVING  STOLEN  PROPERTY. 


At  common  law  no  receivers  were  accessories  but  such  as  received 
or  harbored  the  thief  himself;  the  receiving  of  the  stolen  goods  only 
did  not  make  a  man  accessory,  without  taking  a  reward  to  favor  the 
felon's  escape.  If  the  owner  received  back  his  goods  simply  and 
without  any  agreement  to  favor  the  felon  in  his  prosecution,  it  was 
lawful ;  but  if  he  received  them  upon  an  agreement  not  to  prosecute, 
or  to  prosecute  faintly,  it  was  called  theftbote,  and  punishable  by  im- 
prisonment and  ransom.  But  now  by  St.  3  W.  &  M.  c.  9,  §  4,  "if 
any  person  or  persons  shall  buy  or  receive  any  goods  or  chattels  that 
shall  be  feloniously  taken  or  stolen  from  any  other  person  knowing 
the  same  to  be  stolen,  he  or  they  shall  be  taken  and  deemed  an  ac- 
cessory or  accessories  to  such  felony  after  the  fact,  and  shall  incur 
the  same  punishment  as  an  accessory,  etc.,  after  the  felony  com- 
mitted. *  *  *  "  Now,  by  St.  22  Geo.  Ill,  c.  58,  it  is  enacted  "that 
in  all  cases  whatsoever,  where  any  goods  or  chattels  *  *  *  shall 
have  been  feloniously  taken  or  stolen,  whether  the  offense  of  the  prin- 
cipal shall  amount  to  grand  larceny  or  some  greater  offense,  or  to 
petit  larceny  only,  *  *  *  every  person  who  shall  buy  or  receive 
any  such  goods  and  chattels,  knowing  the  same  to  have  been  so  taken 
or  stolen,1  shall  be  deemed  guilty  of  and  may  be  prosecuted  for  a 
misdemeanor.     *     *     * " 

2  East,  P.  C.  c.  16. 


SECTION  1.— THE  SUBJECT  OF  THE  CRIME. 


REX  v.  COWELL. 

(Suffolk  Assizes,  1796.    2  East,  P.  C.  617.) 

Cowell  and  Green  were  convicted  upon  an  indictment  charging  that 
Cowell  feloniously  stole  one  live  ewe  sheep,  the  goods,  etc.,  of  J.  L., 
and  that  Green  received  "twenty  pounds  of  mutton,  part  of  the  goods, 
etc.,  so  as  aforesaid  feloniously  stolen,  etc.,  knowing  the  same  to  have 

i  St.  24  &  25  Vict.  c.  96,  has:  "Knowing  the  same  to  have  been  feloniously 
stolen,  taken,  extorted,  obtained,  embezzled,  or  disposed  of." 


538  RECEIVING  STOLEN  PROPERTY.  (Ch.  16 

been  stolen."  On  a  question  referred  to  the  judges,  whether  the  in- 
dictment were  sufficient  against  the  accessory,  they  all  held  the  convic- 
tion proper.1 


REX  v.  DYER. 

(Exeter  Assizes,   1801.     2  East,  P.  C.  767.) 

Dyer  and  Disting  were  indicted  for  stealing  a  quantity  of  barilla, 
the  property  of  M.  Hawker.  The  fact  appeared  to  be  that  the  barilla 
was  on  board  a  Swedish  ship  at  Plymouth  consigned  to  Hawker;  that 
Hawker  employed  Dyer,  who  was  master  of  a  large  boat,  for  the 
purpose  of  bringing  the  barilla  on  shore ;  and  Disting,  together  with 
several  others,  were  employed  as  laborers  in  removing  the  barilla 
after  it  was  landed  to  Hawker's  warehouses.  The  jury  found  that, 
while  the  barilla  was  in  Dyer's  boat,  some  of  his  servants,  without 
his  privity,  consent,  or  participation,  severed  some  of  the  barilla  from 
the  rest  where  it  was  stowed,  and  removed  it  to  another  part  of  the 
boat,  where  they  concealed  it  under  some  rope.  But  they  also  found 
that  Dyer  afterwards  assisted  the  other  prisoner  and  the  persons  on 
board,  who  had  before  separated  this  part  from  the  rest,  in  removing 
it  from  the  boat  for  the  purpose  of  carrying  it  off. 

It  was  objected  for  the  prisoner  Dyer  that  his  offense  was  not  that 
of  a  principal,  as  laid  in  the  indictment,  but  that  of  receiver  or  ac- 
cessory after  the  fact.  But  Graham,  B.,  before  whom  the  trial  was 
had,  thought  that  so  long  as  the  barrilla  remained  in  the  boat  the  of- 
fense as  to  Dyer  could  not  be  said  to  be  complete,  but  that  it  was  one 
continuing  transaction  to  the  time  of  the  complete  carrying  off  of  it 
from  the  boat,  and  he  directed  the  jury  accordingly,  who  found  the 
fact  specially  as  above  stated,  and  that  both  the  prisoners  were  guilty. 
Graham,  B.,  however,  deferred  passing  sentence  till  the  next  day, 
when  he  said  that  after  consultation  with  the  other  judge  (Mr.  Justice 
Le  Blanc)  he  was  now  fully  satisfied  that  his  opinion  was  well 
founded ;  that  though  for  some  purposes,  as  with  respect  to  those 
concerned  in  the  actual  taking  and  separation,  the  offense  would  have 
been  complete,  as  being  an  asportation  in  point  of  law,  yet  with  re- 
spect to  Dyer,  who  joined  in  the  scheme  before  the  barilla  bad  been 
actually  taken  out  of  the  boat,  where  it  was  properly  deposited  for 
the  purpose  of  being  landed,  and  who  assisted  in  the  act  of  carrying 
it  off  from  thence,  it  was  one  continuing  transaction,  and  could  not 
be  said  to  be  completed  till  the  removal  of  the  commodity  from  such 
place  of  deposit;  and  Dyer,  having  assisted  in  the  act  of  carrying  it 
off,  was  therefore  guilty  as  principal. 

i  Bee  Accord:    Commonwealth  v.  White,  128  Mass.  480,  -5  Am.  Rep.  116 

ilsTT;. 


Sec,  1)  THE    SUBJECT   OF   THE    CRIME.  539 

REGINA  v.  GRUNCELL. 

(Central   Criminal  Court,   1839.     9  Car.  &  P.  365.) 

The  prisoner  Gruncell  was  indicted  for  stealing  a  quantity  of  hay, 
the  property  of  his  master,  and  the  prisoner  Hopkinson  with  receiving 
it,  well  knowing  it  to  have  been  stolen. 

It  appeared  that  the  prisoner  Gruncell,  who  was  a  carter,  and  was 
allowed  by  his  master  a  small  quantity  of  hay  for  the  use  of  the 
horses  on  their  journey  to  and  from  London,  on  the  day  mentioned 
in  the  indictment,  took  from  his  master's  stables  two  trusses  of  hay 
above  the  quantity  which  was  allowed  for  the  horses,  and  that  the 
prisoner  Hopkinson,  who  was  the  hostler  at  a  public  house  where  the 
wagon  stopped  on  the  journey,  came  to  the  tail  of  the  wagon  and  re- 
ceived the  two  trusses  of  hay  from  the  other  prisoner,  and  carried 
them  from  the  wagon  to  the  stable. 

Adolphus  submitted  that  the  indictment  was  wrongly  framed  as  to 
the  prisoner  Hopkinson  in  charging  him  with  being  a  receiver,  be- 
cause, if  he  had  committed  any  offense  at  all,  it  was  that  of  stealing, 
as  the  hay,  being  in  the  master's  wagon,  was  in  the  master's  possession 
in  point  of  law,  and  the  act  of  the  prisoner  in  removing  it  from  the 
wagon  constituted  it  a  larceny,  and  not  a  receiving. 

Mirehouse,  C.  S.,  was  of  opinion  that  the  indictment  was  properly 
framed,  but  said  he  would  consult  Mr.  Baron  Parke,  who  was  in  the 
adjoining  court.  He  accordingly  did  so,  and  on  his  return  said :  "The 
learned  judge  has  gone  very  carefully,  with  me  and  Mr.  Clark,  through 
the  cases  on  the  subject,  and  he  is  clearly  of  the  opinion,  with  me,  that 
the  indictment  is  properly  framed,  and  he  is  so  on  this  ground: 
That,  as  the  hay  was  not  hay  appropriated  by  the  master  for  the 
horses,  the  moment  it  got  into  the  cart  animo  furandi,  the  larceny  was 
complete.  If  it  had  been  hay  allowed  for  the  horses  which  had  been 
stolen,  it  would  have  been  otherwise. 

Verdict— Guilty. 


REGINA  v.  SCHMIDT. 

(Court  for  Crown  Cases  Reserved,  1866.     10  Cox,  C.  C.  172.) 

Case  reserved  for  the  opinion  of  this  Court  by  the  Deputy  Chair- 
man of  the  Quarter  Sessions  for  the  Western  Division  of  the  County 
of  Sussex. 

John  Daniels,  John  Scott,  John  Townsend,  and  Henry  White  were 
indicted  for  having  stolen  a  carpet  bag  and  divers  other  articles,  the 
property  of  the  London,  Brighton  &  South  Coast  Railway  Company, 
and  the  prisoner,  Fanny  Schmidt,  for  having  feloniously  received  a 
portion  of  the  same  articles,  well  knowing  the  same  to  have  been 
stolen. 


540  RECEIVING  STOLEN   PROPERTY.  (Ch.    IS 

The  evidence  adduced  before  me  as  Deputy  Chairman  of  the  Court 
of  Quarter  Sessions  at  Chichester,  for  the  Western  Division  of  the 
County  of  Sussex,  on  the  20th  of  October,  1S65,  so  far  as  relates  to 
the  question  I  have  to  submit  to  the  Court  of  Criminal  Appeals,  was 
as  follows : 

On  the  29th  of  July,  1865,  two  passengers  by  the  prosecutors'  line 
of  railway  left  a  quantity  of  luggage  at  the  Arundel  Station,  which 
luggage  was  shortly  afterwards  stolen  therefrom. 

On  the  30th  of  July  a  bundle  containing  a  portion  of  the  stolen 
property  was  taken  to  the  Angmering  Station,  on  the  same  line  of 
railway,  by  the  prisoner  Townsend,  and  forwarded  by  him  to  the 
female  prisoner,  addressed,  "Mr.  F.  Schmidt,  Waterloo  Street,  Hove, 
Brighton."  The  bundle  was  transmitted  to  Brighton,  in  the  usual 
course,  on  Sunday  morning,  the  30th. 

Meanwhile  the  theft  had  been  discovered,  and  shortly  after  the 
bundle  had  reached  the  Brighton  Station  a  policeman  (Carpenter)  at- 
tached to  the  railway  company  opened  it,  and,  having  satisfied  himself 
that  it  contained  a  portion  of  the  property  stolen  from  the  Arundel 
Station,  tied  it  up  again,  and  directed  a  porter  (Dunstall),  in  whose 
charge  it  was,  not  to  part  with  it  without  further  orders. 

About  8  p.  m.  of  the  same  day  (Sunday,  30th)  the  prisoner,  John 
Scott,  went  to  the  station  at  Brighton  and  asked  the  porter  (Dunstall) 
if  he  had  got  a  parcel  from  the  Angmering  Station  in  the  name  of 
"Schmidt,  Waterloo  Street."  Dunstall  replied,  "No."  Scott  then 
said:  "It  is  wrapped  up  in  a  silk  handkerchief,  and  is  directed  wrong. 
It  ought  to  have  been  directed  to  22  Cross  street,  Waterloo  street." 
Dunstall  in  his  evidence  added :  "I  knew  the  parcel  was  at  the  sta- 
tion; but  I  did  not  say  so,  because  I  had  received  particular  orders 
about  it." 

The  four  male  prisoners  were  apprehended  the  same  evening  in 
Brighton  on  the  charge,  for  which  they  were  tried  before  me  and 
convicted. 

On  Monday  morning,  the  31st  of  July,  the  porter  (Dunstall),  by 
the  direction  of  the  policeman  (Carpenter),  took  the  bundle  to  the 
house  No.  22  Cross  street,  Waterloo  street,  occupied  as  a  lodging 
house  and  beer  house  by  the  female  prisoner  and  her  husband  (who 
was  not  at  home,  or  did  not  appear),  and  asked  if  her  name  was 
Schmidt,  on  ascertaining  which  he  left  the  bundle  with  her  and  went 
away.  Carpenter  and  another  policeman  then  went  to  the  house, 
found  the  bundle  unopened,  and  took  the  prisoner  to  the  Town  Hall. 

All  the  prisoners  were  found  guilty,  and  I  sentenced  each  of  them 
to  six  months'  imprisonment  with  hard  labor.  They  are  now  in  Pet- 
WOTth  gaol  in  pursuance  0f*that  sentence. 

At  the  request  of  the  counsel  for  the  female  prisoner  I  consented 
to  reserve  for  the  opinion  of  this  court  the  question: 
Whether  tip  alleged  to  have  been  received  by  her  had  not, 

under  the  circumstances  stated,  lust  their  character  of  stolen  property, 


Sec.  1)  THE    SUBJECT   OF   THE    CRIME.  541 

so  that  she  ought  not  to  have  been  convicted  of  receiving  them  with 
a  guilty  knowledge  within  the  statute? 

Hasler  Hollist. 

Pearce  (Willoughby  with  him),  for  the  prisoner.  The  conviction 
is  wrong.  To  support  a  conviction  for  receiving  stolen  goods,  it 
must  appear  that  the  receipt  was  without  the  owner's  authority.  In 
this  case,  in  consequence  of  the  conduct  of  the  railway  company,  the 
property  had  lost  its  character  of  stolen  property  at  the  time  it  was 
delivered  at  the  receiver's  house  by  the  railway  porter.  The  property 
is  laid  in  the  indictment  as  the  property  of  the  railway  company,  and 
Carpenter  was  not  an  ordinary  policeman,  but,  as  the  case  states,  a 
policeman  attached  to  the  railway  company.  He  opens  the  bundle, 
and  finding  therein  some  of  the  stolen  property,  he  gives  it  to  Dun- 
stall,  and  orders  it  to  be  detained  until  further  orders,  and  in  the  mean- 
time the  thieves  were  arrested.  Carpenter  then  directs  Dunstall  to 
take  the  bundle  to  the  receiver's  house,  so  that  the  receiver  got  the 
stolen  property  from  the  railway  company,  who  alone  on  this  indict- 
ment are  to  be  regarded  as  the  owners  of  the  property.  The  railway 
company,  the  owners,  having  got  their  property  back,  make  what  must 
be  considered  a  voluntary  delivery  of  it  to  the  receiver.  The  case  is 
similar  to  Reg.  v.  Dolan,  6  Cox,  C.  C.  449,  1  Dears.  C.  C.  436,  where, 
stolen  goods  being  found  in  the  pockets  of  the  thief  by  the  owner, 
who  sent  for  a  policeman,  and  then,  to  trap  the  receiver,  the  goods 
were  given  to  the  thief  to  take  them  to  the  receiver's,  which  he  did, 
and  the  receiver  was  afterwards  arrested,  it  was  held  that  the  receiver 
was  not  guilty  of  feloniously  receiving  stolen  goods,  inasmuch  as 
they  were  delivered  to  him  under  the  authority  of  the  owner.  In 
that  case  Reg.  v.  Lyons,  Car.  &  M.  217,  was  expressly  overruled. 
Lord  Campbell,  C.  J.,  said,  in  Reg.  v.  Dolan:  "If  an  article  once  stolen 
has  been  restored  to  the  owner,  and  he,  having  had  it  fully  in  his  pos- 
session, bails  it  for  any  particular  purpose,  how  can  any  person  who 
receives  the  article  from  the  bailee  be  said  to  be  guilty  of  receiving 
stolen  goods  within  the  meaning  of  the  act  of  Parliament?" 

Hurst,  for  the  prosecution.  Unless  this  case  is  distinguishable  from 
Reg.  v.  Dolan,  the  conviction,  it  must  be  conceded,  is  wrong.  But 
the  facts  of  this  case  are  more  like  the  view  taken  by  Cresswell,  J., 
in  Reg.  v.  Dolan :  "That,  while  the  goods  were  in  the  hands  of  the 
policeman,  they  were  in  the  custody  of  the  law ;  and  the  owner  could 
not  have  demanded  them  from  the  policeman,  or  maintained  trover 
for  them."  In  that  case  the  real  owner  intervened,  and  had  manual 
possession  of  the  stolen  goods ;  here  he  does  not.  The  goods  belonged 
to  the  railway  passenger,  and  the  company  are  only  bailees.  [Mellor, 
J.  The  policeman  merely  opened  the  bundle  in  the  course  of  its  transit, 
to  see  what  was  in  it,  and  then  sent  it  according  to  its  direction.  It 
was  in  the  hands  of  the  policeman,  not  of  the  company.  Erle,  C.  J. 
Suppose  a  laborer  steals  wheat,  and  he  sends  it  by  a  boy  to  his  accom- 
plice, and  the  policeman  stops  the  boy,  ascertains  what  he  has  got, 


542  RECEIVING  STOLEN  PROPERTY.  (Ch.  16 

then  tells  him  to  go  on,  then  follows  and  apprehends  the  accomplice, 
is  not  the  accomplice  guilty  of  feloniously  receiving?  Mellor,  J. 
Here  the  policeman  does  nothing  to  alter  the  destination  of  the  bundle. 
The  element  of  the  real  owner  dealing  with  the  stolen  property  is 
wanting  in  this  case.  Keating,  J.  Scott  directs  the  address  to  be 
changed.]  The  bundle  was  sent  by  the  thieves,  through  the  railway 
company,  to  the  receivers.  The  real  owner  had  nothing  to  do  with 
this  part  of  the  transaction.  [Lush,  J.  If  the  true  owner  had  sued 
the  company  for  the  property,  the  company  could  not  have  justified 
detaining  or  converting  it.]  If  a  policeman  knows  of  stolen  goods 
being  in  the  hands  of  an  innocent  agent,  and  does  not  take  possession 
for  the  owner,  and  the  innocent  agent,  by  the  policeman's  directions, 
delivers  them  to  a  receiver,  that  does  not  prevent  the  receiver  being 
guilty  of  feloniously  receiving. 

Pearce,  in  reply.  Before  the  bundle  was  sent  out  for  delivery  the 
thieves  were  in  custody,  and,  having  secured  them,  Carpenter  then  gives 
orders  for  the  bundle  to  be  delivered  to  the  receiver.  Carpenter  was 
the  servant  of  the  railway  company,  who  are  the  owners  for  the  pur- 
pose of  this  indictment,  and  the  delivery,  therefore,  was  by  the  owners. 

[Erle,  C.  J.,  and  Mellor,  J.,  were  of  opinion  that  the  conviction  was 
right;  but  Martin,  B.,  and  Keating  and  Lush,  JJ.,  held  the  con- 
viction wrong.  In  consequence  of  the  prisoner  having  suffered  half 
the  term  of  imprisonment  from  inability  to  get  bail  and  the  further 
unavoidable  delay,  the  case  was  not  sent  to  be  argued  before  all  the 
judges.] 

Erle,  C.  J.  I  am  of  opinion  that  the  conviction  was  right.  The 
question  is  whether,  at  the  time  this  stolen  property  was  received  by 
the  prisoner,  it  was  the  property  of  the  London  &  Brighton  Railwav 
Company,  and,  if  so,  whether,  when  the  policeman,  Carpenter,  caused 
the  delivery  to  be  stopped  for  the  purpose  of  detecting  the  parties  im- 
plicated, it  thereby  lost  the  character  of  stolen  property.  If  it  had 
lost  the  character  of  stolen  property  at  the  time  it  was  received  by  the 
prisoner,  the  receiving  by  her  will  not  amount  to  felony.  But  in  this 
case  I  lli ink  that  the  railway  company,  when  they  took  this  bundle  into 
their  possession,  were  acting  as  bailees  of  the  thief,  and  were  innocent 
agents  in  forwarding  it  to  the  receiver,  and  that  the  things  did  not  lose 
their  character  of  stolen  property  by  what  was  done  by  the  policeman. 

Keating,  J.  I  agree  with  my  Brother  Martin  that  the  conviction 
was  wrong.  It  seems  conceded,  on  the  authority  of  Dolan's  Case, 
that,  if  the  property  had  got  back  again  for  any  time  into  the  hands 
of  the  true  owner,  the  conviction  would  be  wrung.  It  is  said  that  in 
this  case  the  owners  mentioned  in  the  indictment,  the  railway  com- 
pany, were  not  the  real  owners,  whereas  in  Dolan's  Case  the  real  owner 
intervened.  But  I  think  there  is  no  distinction  in  principle  between 
this  case  and   that.      The   railway   company   are   alleged   in    the   indict" 

mcnt  to  be  ilf  of  the  property,  and  we,  sitting  here,  ran  recog- 

!io  other   per  'ii     than   them.     They  are  the  owners    from  whom 


Sec.  1)  THE   SUBJECT   OF   THE    CRIME.  543 

the  property  was  stolen,  and  it  got  back  to  their  possession  before  it 
was  received  by  the  prisoner.  I  can  see  no  real  distinction  between 
this  case  and  Dolan's.  All  the  reasons  given  for  the  judgment  in  that 
case  apply  equally  to  the  case  of  the  ownership  in  this  case.  The  prin- 
ciple I  take  to  be  that,  when  once  the  party  having  the  right  of  con- 
trol of  the  property  that  is  stolen  gets  that  control,  the  transaction  is 
at  an  end,  and  there  can  be  no  felonious  receipt  afterwards.  I  think 
the  test  put  my  Brother  Lush  in  the  course  of  the  argument,  as  to  the 
real  owner  suing  the  railway  company  for  the  property  after  they 
had  got  the  control  of  it,  is  decisive  of  the  matter.1 
Conviction  quashed.2 


REGINA  v.  STREETER. 
(Court  for  Crown  Cases  Reserved,  1900.     [1900]  2  Q.  B.  601.) 

Case  stated  by  the  chairman  of  the  West  Sussex  Quarter  Sessions. 

Ellen  Tickner  and  William  Streeter  were  tried  for  larceny  in  a 
dwelling  house  of  some  household  goods,  a  sewing  machine,  and  £27 
in  money.  A  count  for  receiving,  in  the  usual  form,  was  added  to 
the  indictment. 

It  appeared  from  the  evidence  that  the  defendant  Ellen  Tickner  was 
living  with  her  husband,  James  Tickner,  to  whom  she  had  been  mar- 
ried 26  or  27  years,  at  Stammerham,  near  Horsham.  The  defendant 
William  Streeter  was  lodging  with  them. 

On  April  21,  1900,  James  Tickner  turned  Streeter  out  of  the  house. 
On  May  11th  Ellen  Tickner  packed,  and  sent  by  the  carrier  to  Hors- 
ham, two  boxes  labeled  "Streeter,  Passenger  to  Brighton,"  which  the 
carrier  handed  to  Streeter  at  Horsham  Station.  Ellen  Tickner  shortly 
afterwards  left  her  husband's  house,  while  he  was  at  work,  and  joined 
Streeter  at  Southwater  Station,  on  the  line  to  Brighton.  They  were 
subsequently  found  living  together  as  man  and  wife  at  Farnham. 
James  Tickner,  after  his  wife's  disappearance,  missed  the  money  and 
goods  referred  to  in  the  indictment,  and  gave  information  to  the 
police,  which  led  to  the  arrest  of  the  prisoners.  At  the  time  of  the 
arrest  the  missing  goods  were  found  in  the  boxes  which  Ellen  Tick- 
ner had  sent  to  Streeter,  and  £27  in  money  was  found  in  Streeter's 
box,  the  key  of  which  was  found  in  Ellen  Tickner's  purse.8 

The  question  for  the  decision  of  the  court  was  whether,  upon  the 
facts  set  out  above,  Streeter  could  be  indicted  for  receiving  goods  stolen 
by  Ellen  Tickner  from  her  husband. 

Matthew,  J.     The  conviction  in  this  case  must  be  quashed.     The 

i  The  opinions  of  Martin,  B.,  and  Mellor  and  Lush,  JJ.,  are  omitted. 

2  Accord:  U.  S.  v.  De  Rare,  6  Biss.  (U.  S.)  35S,  Fed.  Cas.  No.  14.035  (1875) ; 
Reg.  v.  Hancock,  14  Cox,  C.  C.  119  (1878) ;  Reg.  v.  Villensky,  [1S92J  2  Q.  B. 
597  (1S92). 

s  Part  of  the  statement  is  omitted. 


544  RECEIVING  STOLEN  PROPERTY.  (Ch.  16 

point  is  really  concluded  by  the  decision  in  Reg.  v.  Smith,  L.  K.  1  C. 
C.  266.  Formerly  there  were  two  cases  in  which  an  indictment  for 
larceny  could  not  be  preferred.  The  first  case  was  that  of  a  wife 
faking  the  goods  of  her  husband,  and  the  second  was  that  of  a  partner 
taking  the  goods  of  the  partnership.  Both  these  cases  have  been 
brought  within  the  criminal  law  by  act  of  Parliament — the  case  of 
a  partner  by  the  larceny  act  of  1868  (St.  31  &  32  Vict.  c.  116),  and 
that  of  a  wife  by  the  married  women's  property  act  of  1882  (St.  45 
&  46  Vict.  c.  75,  §§  12,  16).  The  question  which  we  have  to  deter- 
mine is  whether  the  present  case  comes  within  the  terms  of  the  larceny 
act  of  1S61  (St.  24  &  25  Vict.  c.  96,  §  91),  so  as  to  render  the  male 
prisoner  liable  to  be  convicted  of  receiving.  The  material  words  of 
that  section  are  as  follows:  "Whosoever  shall  receive  any  chattel, 
money,  valuable  security,  or  other  property  whatsoever,  the  stealing, 
taking,  extorting,  obtaining,  embezzling,  or  otherwise  disposing  where- 
of shall  amount  to  a  felony,  either  at  common  law  or  by  virtue  of 
this  act,  knowing  the  same  to  have  been  feloniously  stolen  *  *  * 
shall  be  guilty  of  felony."  Here  the  act  of  the  woman  in  taking  her 
husband's  property,  which  would  not  have  been  a  felony  either  at 
common  law  or  by  virtue  of  the  larceny  act  of  1861,  has  been  made 
a  criminal  offense  by  another  act,  the  married  women's  property  act 
of  1882  (sections  12  and  16)  ;  but  this  does  not  bring  it  within  the 
words  "either  at  common  law  or  by  virtue  of  this  act" — that  is,  the 
larceny  act  of  1861.  Reg.  v.  Smith,  1839,  2  Moo.  C.  C.  101,  9  C.  & 
P.  289,  was  a  case  in  which  partnership  property  had  been  stolen  by 
a  partner  and  received  by  the  prisoner,  the  stealing  being  a  criminal 
offense  by  virtue  of  the  larceny  act  of  1868,  and  it  was  held  that  the 
prisoner  could  not  be  convicted  of  receiving  under  Larceny  Act  1861, 
§  91.  Our  decision  must  be  to  the  same  effect ;  that  is,  that  the  prisoner 
cannot  be  convicted  of  receiving  property  stolen  by  a  wife  from  her 
husband. 

Lawrence,  J.,  concurred. 

Wright,  J.  I  agree  that  this  prisoner  could  not  properly  be  con- 
victed under  Larceny  Act  1861,  §  91 ;  but  in  future  cases  it  seems  thai 
there  might  be  an  indictment  for  receiving  at  common  law. 

Kennedy  and  Darling,  JJ.,  concurred. 

Conviction  quashed. 


Sec.  2)  the  act  or  receiving.  545 

SECTION  2.— THE  ACT  OF  RECEIVING. 


REGINA  v.  WILEY. 
(Court  for  Crown  Cases  Reserved,  1S50.    1  Eng.  Law  &  Eq.  5G7.) 

Martin,  B.1  It  appears  that  two  men  stole  some  fowls,  put  them 
into  a  sack,  and  brought  them  into  the  house  of  Wiley's  father,  for 
the  purpose  of  selling  them  to  Wiley ;  that  they  all  three  went  out  of 
the  house  into  the  stable,  the  thieves  carrying  the  sack  and  Wiley  pre- 
ceding them  with  a  candle;  that  the  stable  door  was  shut;  and  that 
the  policeman,  on  opening  it,  found  the  sack  on  the  ground  and  three 
men  standing  round  it,  as  if  bargaining.  Upon  this  case  I  am  of 
opinion  that  Wiley  never  did  receive  these  articles.  I  entirely  agree 
that  the  question  arises  upon  the  possession.  There  was  no  property 
in  these  fowls,  or  in  any  of  them.  The  men  who  stole  the  fowls  had 
them  in  their  possession,  and  intended  to  hold  them  hostilely  to  Wiley, 
and  never  intended  to  let  him  have  them,  unless  some  bargain  were 
made  between  themselves  and  Wiley  for  the  purchase  of  them.  I 
think  that,  in  the  ordinary  acceptation  of  the  word  "receive,"  Wiley 
could  not  be  said  to  have  received  this  property,  and  that,  therefore, 
he  ought  not  to  have  been  convicted.2 

Erle,  J.  I  am  of  opinion  that  the  conviction  is  right,  and  on  two 
grounds.  The  first  ground  is  because  Wiley  co-operated  with  the 
thieves  in  removing  the  goods  into  the  stable,  which  was  under  Wiley's 
control,  for  the  purpose  of  more  securely  effecting  a  bargain  respect- 
ing them.  Now,  if  Wiley  had  taken  part  in  the  actual  carrying  of 
the  goods,  there  would  have  been  no  doubt,  I  believe,  in  the  minds  of 
many  of  my  Brothers  but  that  he  would  have  been  rightly  convicted. 
But  he  lighted  a  candle,  and  preceded  the  thieves,  while  they  carried 
the  sack ;  and  I  think  that  in  so  doing  he  co-operated  with  them,  so 
as  to  render  himself  liable  to  be  convicted  as  a  receiver.  I  come  to 
this  conclusion  on  the  principle  of  the  law  that  a  person  who  assists 
a  thief  in  removing  to  a  place  of  safety  goods  which  the  latter  has 
already  removed  from  the  owner's  premises  cannot  be  convicted  of 
larceny;  but  it  seems  to  me  that  the  person  who  so  co-operates  is  a 
criminal,  and  that  the  law  would  reach  him  as  a  receiver.  The  other 
ground  on  which  I  think  that  this  conviction  may  be  sustained  is  that 
I  attach  a  wider  meaning  to  the  word  "receive"  than  has  been  given 
to  it  by  some  of  my  Brothers.  The  rules  respecting  property  which" 
have  relation  to  civil  rights  seem  to  me  to  have  no  application  here. 
Several  statutes  have  been  passed  to  render  an  accessory  after  the  fact 

i  The  statement  and  the  argument  of  counsel  are  omitted. 
2  Talfourd  and  Patteson,  J.T.,  and  Piatt,  Alderson,  and  Parke,  BB.,  deliver- 
ed concurring  opinions,  in  which  Maule,  J.,  concurred. 

Mik.Cb.L.— 35 


546  RECEIVING  STOLEN  PROPERTY.  (Cll.  16 

more  open  to  punishment  than  he  was  at  common  law.  I  think  that 
the  word  "receive,"  with  respect  to  stolen  goods,  should  be  construed 
with  reference  to  the  word  "harbor,"  applied  to  the  thief.  If  a  man  har- 
bors the  stolen  goods,  knowing  them  to  be  stolen,  for  the  purpose  of 
aiding  the  thief,  he  is  liable  under  the  statute  as  a  receiver.  If  he  is 
the  owner  of  a  stable,  and  authorizes  thieves  to  deposit  stolen  prop- 
erty on  the  premises,  he  would  be  liable  in  like  manner;  and  it  seems 
to  me  that  he  is  not  the  less  liable  because  the  thieves  remain  there 
also.  If  they  bring  the  property  there  with  his  consent,  he  is,  I  think, 
guilty  of  receiving  it.  The  earlier  statutes  did  not  contemplate  that 
there  must  be  any  bargain  or  transfer  of  the  goods  to  a  man  to  con- 
stitute him  a  receiver.  In  St.  29  Geo.  II,  c.  30,  it  was  made  an  offense 
to  leave  the  window,  door,  or  shutter  of  any  premises  open  at  night 
for  the  purpose  of  offering  a  thief  a  place  of  deposit  for  any  stolen 
lead  or  other  metal. 

On  both  these  grounds  I  am  of  opinion  that  the  conviction  is  right.'' 
Coleridge,  J.4  I  think,  also,  that  the  conviction  is  wrong.  In  my 
opinion,  "receiving"  must  import  possession,  actual  or  constructive. 
I  cannot  find  either  here.  I  think,  therefore,  that  the  conviction  is 
wrong.  It  is  of  great  importance  that  in  the  administration  of  the 
criminal  law  we  should  proceed  upon  broad  principles  of  construction, 
intelligible  to  common  understandings. 
Conviction  reversed.6 


REGINA  v.  WOODWARD. 
(Court  of  Criminal  Appeal,  1862.     9  Cox,  C.  C  95.) 

Case  reserved  for  the  opinion  of  the  Court  of  Criminal  Appeal.  At 
the  Quarter  Sessions  of  the  Peace  for  the  County  of  Wilts,  held  at 
Marlborough,  on  the  16th  day  of  October,  1861,  before  me,  Sir  John 
Wither  Awdry,  Bart.,  and  others,  my  fellows,  Benjamin  Woodward, 
of  Trowbridge,  in  the  county  of  Wilts,  dealer,  was  found  guilty  of 
receiving  stolen  goods,  knowing  them  to  have  been  stolen,  and  was 
thereupon  sentenced  to  nine  calendar  months'  imprisonment  with  hard 
labor,  and  the  prisoner  now  is  undergoing  his  sentence. 

The  actual  delivery  of  the  stolen  property  was  made  by  the  prin- 

>  Pari    of    this    "pinion    Is    omitted.      Campbell,    C.    J.,    and    Williams    and 
well,  .T.T.,  delivered  concurring  opinions. 

«  Pari  of  iins  opinion  is  omitted. 

u  Compare:  State  v.  Scovel,  1  Mill,  Const.  (S.  C.)  271  (1S17);  State  v. 
Stroud,  96  N.  0.  626  (1886).  in  State  v.  si.  Clair,  17  [owa,  149  (1864),  the 
Indictment  being  for  concealing  Btolen  property,  Lowe,  J.,  Bald:  "II  is  nol 
try  thai  the  evidence  should  show  thai  h«'  bad  physical  possession  of 
it  blmself  and  concealed  11  with  his  own  hands.  Bui  If  he  was  present,  knew 
thai  it  w:is  Btolen  property,  and  saw  it  hid  by  another,  and  k * -i >t  silent,  and 
refused  to  give  Information  to  the  officers  searching  for  the  same,  such  con 
duct,  unexplained,  makes  him  aa  guilty  In  law  as  the  party  whose  hands 
actually  secreted  the  goods." 


Sec.  2)  THE   ACT  OF    RECEIVING.  547 

cipal  felon  to  the  prisoner's  wife,  in  the  absence  of  the  prisoner,  and 
she  then  paid  Gd.  on  account;  but  the  amount  to  be  paid  was  not  then 
fixed.  Afterwards  the  prisoner  and  the  principal  met  and  agreed  on 
the  price,  and  the  prisoner  paid  the  balance. 

Guilty  knowledge  was  inferred  from  the  general  circumstances  of 
the  case. 

It  was  objected  that  the  guilty  knowledge  must  exist  at  the  time  of 
receiving,  and  that  when  the  wife  received  the  goods  the  guilty  knowl- 
edge could  not  have  come  to  the  prisoner. 

The  court  overruled  this  objection,  and  directed  the  jury  that  until 
the  subsequent  meeting,  when  the  act  of  the  wife  was  adopted  by 
the  prisoner  and  the  price  agreed  upon,  the  receipt  was  not  so  com- 
plete as  to  exclude  the  effect  of  the  guilty  knowledge. 

If  the  court  shall  be  of  opinion  that  the  circumstances  before  set 
forth  are  sufficient  to  support  a  conviction  against  the  prisoner  for  the 
felonious  receipt,  the  conviction  is  to  stand  confirmed;  but  if  the 
court  shall  be  of  a  contrary  opinion,  then  the  conviction  is  to  be 
quashed.  J.  \y.  Awdry.1 

Erle,  C.  J.  The  argument  of  the  learned  counsel  for  the  prisoner 
has. failed  to  convince  me  that  the  conviction  was  wrong  It  appears 
that  the  thief  brought  to  the  premises  of  the  prisoner  the  stolen  goods 
and  left  them,  and  that  sixpence  was  paid  on  account  of  them  by  the 
prisoner's  wife;  but  there  was  nothing  in  the  nature  of  a  complete 
receipt  of  the  goods  until  the  thief  found  the  husband,  and  agreed  with 
him  as  to  the  amount,  and  was  paid  the  balance.  The  receipt  was 
complete  from  the  time  when  the  thief  and  the  husband  agreed.  Till 
then  the  thief  could  have  got  the  goods  back  again  on  payment  of  the 
sixpence.  I  am  of  opinion,  therefore,  that  the  conviction  should  be 
affirmed.2 

Wilde,  B.  I  read  the  case  as  showing  that  the  wife  received  the 
goods  on  the  part  of  the  prisoner,  her  husband,  and  that  act  of  hers 
was  capable  of  being  ratified  on  the  part  of  the  prisoner.  If  so,  that 
makes  the  first  act  of  receiving  by  the  wife  his  act.  In  the  case  of 
Reg.  v.  Dring  and  Wife,  the  only  statement  was  "that  the  husband 
adopted  his  wife's  receipt,"  and  the  court  thought  the  word  "adopted" 
capable  of  meaning  that  the  husband  passively  consented  to  what  his 
wife  had  done,  and  on  that  ground  quashed  the  conviction.  But  here 
the  prisoner  adopted  his  wife's  receipt  by  settling  and  paying  the 
amount  agreed  on  for  the  stolen  goods. 
Mellor,  J.,  concurred. 
Conviction  affirmed. 

i  The  argument  of  Broderick,  for  the  prisoner,  Is  omitted. 

2  The  concurring  opinions  of  Blackburn  and  Keating,  JJ.,  are  omitted. 


548  RECEIVING  STOLEN  PROPERTY.  (Ch.  16 

SECTION  3.— THE  GUILTY  KNOWLEDGE. 


FRANK  v.  STATE. 

(Supreme  Court  of  Mississippi,  18S9.     67  Miss.  125,  6  South.  S42.) 

Appellant  was  indicted  for  receiving  stolen  goods,  a  lot  of  car  brass- 
es, knowing  them  to  be  stolen.1 

Campbell,  J.,  delivered  the  opinion  of  the  court. 

It  is  true,  as  held  in  Sartorious  v.  State,  24  Miss.  602,  that  it  is  not 
sufficient,  to  convict  the  prisoner  of  receiving  goods  knowing  them 
to  be  stolen,  to  show  that  he  stole  them;  but  where  circumstances 
warrant  the  conclusion  that  they  were  stolen  by  another,  and  they  are 
traced  to  the  possession  of  the  defendant,  under  circumstances  suffi- 
cient to  make  him  believe  they  were  stolen,  this  is  sufficient  to  uphold 
a  conviction.  By  knowing  them  to  be  stolen  is  not  meant  that  the  de- 
fendant should  personally  have  witnessed  the  theft.  If  the  transaction 
is  such  as  to  convince  him,  or  as  should  do  so,  that  the  things  were 
stolen,  and  he  received  them,  he  has  knowledge  to  make  him  guilty. 

The  evidence  justifies  the  verdict  of  the  jury.  We  find  no  error 
in  the  instructions.  The  assumption  in  one  of  them  that  the  goods 
were  stolen  by  another  than  Frank,  in  view  of  the  evidence,  which 
made  this  indisputable,  is  not  ground  for  complaint. 

Affirmed.2 


STATE  v.  CAVENESS. 

(Supreme  Court  of  North  Carolina,  1878.     78  N.  C.  484.) 

Indictment  for  larceny,  with  a  count  for  receiving,  etc.,  tried  at 
fall  term,  1877,  of  Randolph  superior  court,  before  Buxton,  J. 

Bynum,  J  This  case  is  before  us  on  the  appeal  of  the  defendant 
from  the  refusal  of  the  court  below  to  give  him  a  new  trial  for  al- 
leged errors  which  wc  will  specify  and  dispose  of  in  their  order.3 

A  more  serious  question  is  whether  it  was  not  the  duty  of  the  court 
to  have  instructed  the  jury  that  there  was  no  evidence  to  convict  the 
defendant  upon  the  second  count.  Assuming  that  all  the  material 
evidence  is  set  out  in  the  case,  the  sum  of  it  is,  touching  the  second 
count,  that  the  property  was  stolen  one  night  and  found  next  morning 
in  the  defendant's  stable;  that  he  was  not  then  at  home,  and,  in  point 
of  fart,  was  in  another  county,   l<>  miles  distant,  and  did  not  return  un- 

i  Part  of  thli  case  is  omitted. 

■  Accord:  Reg.  v.  White!  i  Foat  A  B\  666  (1859);  Murlo  v.  State,  81  Tex, 
Cr.  h.  210,  20  s.  \v.  866  (1892);  State  v.  Feuerhaken,  96  [owa,  299,  05  N. 
w.  299  (1896). 

*  Part  of  the  opinion  only  is  printed. 


Sec.  4)  TIIK    INTENT.  549 

til  the  second  day  after  the  occurrence.  He  certainly  did  not  receive 
the  property  until  his  return,  as  there  is  no  evidence  of  previous  guilty 
knowledge  or  connivance.  To  be  guilty,  he  must  have  known  at  the 
moment  of  receiving  it  that  it  had  been  stolen,  and  he  must  at  that  time 
have  also  received  it  with  a  felonious  intent.  There  is  no  evidence 
that  he  had  any  knowledge  then  imparted  to  him  of  the  circumstances 
under  which  the  property  was  found  upon  his  premises,  communicat- 
ing to  him  notice  of  the  felony ;  and  his  subsequent  open  and  notorious 
user,  and  both  previous  and  subsequent  claim  of  property  as  his  own, 
are  inconsistent  with  felonious  intent  at  the  time  of  receiving,  which 
is  necessary  to  constitute  guilt  upon  the  second  count. 

As,  however  the  evidence  is  not  fully  stated,  and  neither  the  atten- 
tion of  the  court  nor  counsel  seems  to  have  been  directed  to  this  in- 
firmity in  the  case,  we  do  not  rest  our  decision  granting  a  new  trial 
upon  this  point,  but  upon  the  error  of  the  court  in  respect  of  the 
seventh  exception. 

There  is  error. 

Venire  de  novo. 


SECTION  4.— THE  INTENT. 


REX  v.  DAVIS. 
(Gloucester  Assizes,  1S33.     6  Car.  &  P.  177.) 

The  prisoners,  who  were  father  and  daughter,  the  former  being  a 
pawnbroker  at  Cheltenham,  were  indicted  as  receivers  on  several  in- 
dictments, which  charged  them  with  receiving  sheets  and  various 
articles  of  linen,  the  property  of  Thomas  Liddell.  It  appeared  that 
the  goods  laid  in  the  first  indictment  were  found,  together  with  manv 
other  goods  of  the  prosecutor,  at  the  house  of  the  elder  prisoner, 
marked  with  his  mark. 

Gurney,  B.1  If  the  receiver  takes  without  any  profit  or  advantage, 
or  whether  it  be  for  the  purpose  of  profit  or  not,  or  merely  to  assist  the 
thief,  it  is  precisely  the  same.2 

The  prisoners  were  acquitted  on  the  merits. 

i  Only  so  much  of  the  case  as  relates  to  intent  is  printed. 

2  Accord:  State  v.  Rushing,  69  N.  C.  29,  12  Am.  Rep.  641  (1873);  State 
v.  Hodges,  55  Md.  127  (1SS0). 

"In  order  to  constitute  the  crime  created  by  the  statute,  the  stolen  property 
must  be  received  feloniously,  or  with  intent  to  secrete  it  from  the  owner, 
or  in  some  other  way  to  defraud  him  of  such  property.  The  intent  must  be 
criminal  or  unlawful ;  otherwise,  no  crime  can  be  committed.  It  is  the 
intent  with  which  the  property  is  received  that  constitutes  the  essence  of  the 
crime.  If  the  intent  is  honest  and  meritorious,  no  crime  can  be  committed." 
Crippen,  P.  J.,  in  People  v.  Johnson,  1  Parker,  Cr.  R.  (N.  Y.)  564  (1854).  Ac- 
cord: State  v    Sweeten,  75  Mo.  App.  127  (1898). 


550  RECEIVING  STOLEN  PROPERTY.  (Cll.  16 

PEOPLE  v.  WILEY. 

(Supreme  Court  of  New  York,  1842.     3  Hill,  194.) 

Cowen,  J.1  The  section  under  which  the  defendant  was  indicted 
is  as  follows :  "Every  person  who  shall  buy  or  receive  in  any  manner, 
upon  any  consideration,  any  personal  property  of  any  value  whatso- 
ever, that  shall  have  been  feloniously  taken  away  or  stolen  from  any 
other,  knowing  the  same  to  have  been  stolen,  shall,  upon  conviction, 
be  punished,"  etc.,  2  Rev.  St.  (2d  Ed.)  p.  567,  pt.  4,  c.  1,  tit.  3,  §  71. 

In  charging  the  jury,  the  court  mentioned  the  owner  of  the  goods 
coming  to  reclaim  his  stolen  property,  and  his  bona  fide  agents,  as  not 
within  the  purview  of  the  statute.  But  I  take  it  to  be  clear,  on  the 
other  hand,  that  if,  pursuant  to  an  understanding  between  a  stranger 
and  a  thief,  the  stranger  invite  an  interview  with  the  owner,  and  ob- 
tain and  actually  receive  the  goods  for  him,  under  the  mere  color  of 
an  agency,  but  really  to  make  a  profit  out  of  the  larceny,  he  is  a  re- 
ceiver within  the  statute. 

The  broad  ground  was  taken  on  the  argument  that  the  offense 
would  not  be  within  the  statute  of  receivers,  even  though  a  reward 
should  be  taken  from  the  thief  himself. 

In  the  case  at  bar  the  defendant  had  come  to  a  knowledge  of  the 
larceny  soon  after  its  commission,  and  he  appeared  to  have  that  sort 
of  communication,  and  to  exercise  such  a  control  in  respect  to  the 
stolen  goods,  and  to  negotiate  in  such  a  way  for  their  delivery,  as  to 
raise  a  strong  belief  that  he  had  arranged  with  the  thief  to  restore  the 
goods  as  a  method  of  profiting  by  the  crime.  He  receiving  and  de- 
livering the  goods  under  such  a  corrupt  arrangement,  the  pretense 
of  acting  as  agent  for  the  owner  could  not  operate  as  a  protection.  He 
would  be  in  truth  acting  for  himself.  His  pretext  of  agency  for  the 
owners  would  be  fraudulent  and  void,  and  to  allow  practices  of  this 
kind  would  be  to  sanction  a  mode  of  evading  the  statutes. 

It  seems  to  me  that  the  charge  of  the  court  below  when  properly 

understood,  so  far  as  it  relates  to  the  merits,  can  hardly  be  considered 

as  going  beyond  the  distinction  between  a  real  and  colorable  agency — 

between  the  defendant  affecting  to  receive  the  goods  for  the  owner, 

but  really  receiving  them  for  his  own  benefit.     The  only  part  of  the 

charge  on  the  merits  which  is  questioned  by  the  bill  of  exceptions  re- 

pects  the  concluding  transactions  of  Saturday,  the  26th  of  June,  when 

ment  Eor  the  delivery  of  the  goods  was  consummated.    That 

at  this  time  the  defendant  knew  the  goods  to  have  been  stolen  there 

i    no  doubt;   nor  thai  he  Had  known  the  same  thing  during  the  pre- 

days  of  the  week.     Now,  if  he  had  all  this  time  been  treating 

for  such  a  reward  only  as  was  insisted  on  by  the  thief  before  he  would 

give  up  the  goods,  or  Eor  a  fair  compensation  to  himself,  proposed  and 

1  only  extracts  from  the  opinion  are  printed. 


Sec.  4)  THE   INTENT.  551 

allowed  as  such,  for  his  trouble,  or  if  he  had  required  both,  I  do  not 
understand  the  court  below  to  have  said  that  his  receiving  the  goods 
and  fulfilling  such  an  engagement  would  have  been  criminal  within 
the  statute.  But  suppose  that,  with  such  full  knowledge  and  so  much 
negotiation  and  apparently  honest  intentions  to  benefit  the  owners,  his 
secret  intent  on  Saturday  was  to  convert  the  reward,  or  most  of  it,  to 
his  own  use — to  make  a  commodity  out  of  the  felony  at  the  expense 
of  the  owners — and  that  he  received  and  restored  the  goods  with  that 
intent,  and  carried  it  out  either  by  taking  the  whole  reward  or  dividing 
with  the  thief;  it  seems  to  me  we  have  in  such  a  case  the  very  mischief 
which  the  statute  was  mainly  intended  to  remedy.  That  mischief  was 
such  a  receipt  of  stolen  goods,  with  knowledge,  as,  contrary  to  the 
owner's  intent,  should  deprive  him  of  them,  or  any  part  of  them.  This 
is  the  doctrine  which  I  understand  the  court  below  to  have  held.  They 
said,  if  he  received  the  property  on  Saturday  with  the  intent  (such 
intent  being  unknown  and  unassented  to  by  the  owners  or  their  agents) 
to  appropriate  the  reward  to  himself  or  divide  it  with  the  thief,  and 
did  either,  he  was  then  guilty.  I  do  not  recite  the  charge  literally,  but 
such  is  the  substance  of  that  part  to  which  the  stress  of  the  argument 
for  the  defendant  was  directed. 

1  would  by  no  means  be  considered  as  admitting  that  any  arrange- 
ment to  obtain  and  restore  stolen  goods  for  a  reward  stipulated  with 
the  owner,  and  actually  receiving  them  from  the  thief  for  that  purpose, 
would  stand  clear  of  the  statute.2  It  obviously  would  not,  if  the  re- 
ward were  to  be  received  from  the  thief;  and,  if  from  the  owner,  it 
would  be  a  crime  within  the  statute  under  which  Jonathan  Wild  was 
hung.  In  the  most  favorable  view,  it  would  in  general  be  an  act  of 
high  legal  criminality;  for  it  is  commonly  accompanied  with  a  com- 
position of  felony.  This,  at  least,  is  a  crime  from  the  imputation  of 
which  even  the  owner  himself  and  his  most  innocent  agents  (if  the 
word  "innocent"  be  admissible)  can  hardly  be  considered  clear  in  such 
a  transaction. 

This  defendant  was  the  factotum.  The  thief,  considering  him  an 
adept,  appeals  to  him  as  a  confidential  go-between;  and  he  proposes 
to  obtain  and  restore  the  goods— say,  if  you  please,  for  a  specific  share 
of  the  stolen  fund.  This  is  acceded  to,  and  he  receives  the  goods. 
I  can  feel  no  doubt  that  such  a  man  is  within  the  statute,  both  as  to 
the  letter  and  spirit.  He  instructs  his  counsel  to  call  this  honesty. 
It  is,  indeed,  the  honesty  of  a  thief-broker;  and  had  he,  in  this  sense, 
dealt  honestly  and  fairly  both  with  the  agents  and  the  thief,  I  think 
he  was  within  the  statute.  It  follows,  then,  that  in  speaking  of  Sat- 
urday's transaction  the  court  put  it  with  too  great  qualification.  They 
might  well  have  told  the  jury  that,  though  the  agents  of  the  bank  were 
in  no  way  imposed  upon  by  the  defendant,  yet  he  was  guilty.    It  fol- 

2  Accord:  Receiving  to  induce  owner  to  give  reward,  State  v.  Pardee,  37 
Ohio  St.  63  (1881). 


552  RECEIVING    STOLEN    PROPERTY.  (Ch.    16 

lows  that,  so  far  from  charging  too  strongly  against  the  defendant,  they 
erred  in  his  favor. 

On  the  whole,  I  am  of  opinion  that  a  new  trial  should  be  denied, 
that  the  record  be  remitted,  and  the  oyer  and  terminer  be  advised  to 
pass  sentence. 

Ordered  accordingly.3 

«  Compare  Aldrich  v.  People,  101  111.  16  (1881). 


Sec.  1)  BURGLARY.  553 

CHAPTER  XVII. 
BURGLARY. 


Let  inquiry  also  be  made  of  burglars.  Such  we  hold  to  be  all  those 
who  feloniously  in  time  of  peace  break  churches,  or  the  houses  of 
others,  or  the  walls  or  gates  of  our  cities  or  boroughs.  Infants  under 
age,  and  poor  people,  who  through  hunger  enter  the  house  of  another 
for  victuals  under  the  value  of  twelve  pence,  are  excepted,  as  are  also 
idiots  and  madmen,  and  others,  who  are  incapable  of  felony;  and 
those  who  enter  into  any  tenement,  by  way  of  seisin  in  respect  of  some 
right  which  they  think  they  have,  are  not  held  to  be  burglars. 

The  punishment  of  such  felons  is  death.1 

Britton  (NichohY  Trans.)  42. 

A  burglar  (or  the  person  that  committeth  burglary)  is  by  the  com- 
mon law  a  felon,  that  in  the  night  breaketh  and  entereth  into  a  man- 
sion house  of  another,  of  intent  to  kill  some  reasonable  creature,  or 
to  commit  some  other  felony  within  the  same,  whether  his  felonious 
intent  be  executed  or  not.  *  *  *  As  long  as  the  daylight  continues, 
whereby  a  man's  countenance  may  be  discerned,  it  is  called  day ;  and 
when  darkness  comes  and  daylight  is  past,  so  as  by  the  light  of  day 
you  cannot  discern  the  countenance  of  a  man,  then  it  is  called  night. 
*  *  *  This  doth  aggravate  the  offense,  sith  the  night  is  the  time 
wherein  man  is  to  rest,  and  wherein  beasts  run  about  seeking  their 
prey. 

Coke,  3  Inst.  63. 


SECTION   1.— THE  BREAKING. 


REX  v.  HYAMS. 

(Central  Criminal  Court,  1S3G.    7  Car.  &  P.  441.) 

The  prisoners  were  indicted  for  burglary  in  the  dwelling  house  of 
Jane  Hart. 

It  appeared  from  the  evidence  of  the  prosecutrix  that  she  went  out, 
leaving  her  window  shut  down,  but  not  fastened,  though  she  admitted 
that  there  was  a  hasp  which  could  have  been  fastened  to  keep  it  down. 
The  entry  was  effected  by  raising  the  window. 

*  "Housebreaking  and  arson     *     •     •     are  botless."     Laws  of  Cnut  II,  64. 


554  BURGLARY.  (Ch.  17 

For  the  prisoners,  it  was  objected  that  this  was  not  sufficient  evi- 
dence of  a  breaking,  as  the  window  was  not  fastened  when  it  might 
have  been,  and  that  it  was  similar  to  that  of  pushing  farther  up  a  win- 
dow left  a  little  open,  which  had  been  held  not  to  be  a  breaking. 

Mr.  Justice  Park  and  Mr.  Justice  Coleridge  were  of  opinion  that 
there  was  enough  to  constitute  a  breaking,  and  the  prisoners  were 
convicted.1 


PEOPLE  v.  DUPREE. 

(Supreme  Court  of  Michigan,  1893.    98  Mich.  26,  56  N.  W.  1046.) 

Grant,  J.  The  respondent  was  convicted  of  burglary  under  section 
9132,  How.  St.2 

The  theory  of  the  prosecution  was  that  the  respondent,  when  in  the 
shop,  either  on  the  6th  or  7th  of  October  (the  court,  in  its  charge 
referred  to  the  date  as  Friday,  October  7th),  raised  the  window  just 
enough  to  prevent  the  bolt  from  entering  the  slot,  and  there  was  evi- 
dence to  sustain  it.  It  is  insisted  that  even  if  this  was  so,  and  the  re- 
spondent raised  the  window  on  the  following  night,  it  did  not  estab- 
lish the  crime  of  burglary.  We  cannot  agree  with  this  contention.  It 
is  said  in  Dennis  v.  People,  27  Mich.  151 : 

"If  an  entry  is  effected  by  raising  a  trap-door,  which  is  kept  down 
merely  by  its  own  weight,  or  by  raising  a  window  kept  in  its  place 
only  by  pulley  weight,  instead  of  its  own,  or  by  descending  an  open 
chimney,  it  is  admitted  to  be  enough  to  support  the  charge  of  break- 
ing; and  I  am  unable  to  see  any  substantial  distinction  between  such 
cases  and  one  where  an  entry  is  effected  through  a  hanging  window 
over  a  shop  door,  and  which  is  only  designed  for  light  above,  and 
for  ventilation,  and  is  down,  and  kept  down  by  its  own  weight,  and  so 
firmly  as  to  be  opened  only  by  the  use  of  some  force,  and  so  situated 
as  to  make  a  ladder,  or  something  of  that  kind,  necessary  to  reach  it 
for  the  purpose  of  passing  through  it." 

We  think  the  doctrine  there  enunciated  covers  the  present  case. 
If  there  had  been  no  bolt,  and  respondent  had  raised  the  window  and 
entered  in  the  nighttime,  under  all  the  authorities,  he  would  have  been 
guilty  of  burglary.  Upon  what  reason  can  it  be  said  that  his  removal 
of  the  bolt,  or  his  raising  the  window  a  fraction  of  an  inch,  in  the  day- 
time, changes  the  character  of  his  offense?     If  the  owner  had  failed 

■  Accord:     Removing  a  plank  placed  to  cover  an  opening,  Carter  v.  State, 

68  Ala.  96  (1880);    lifting  n  hook  with  which  b  door  is  fastened,  Ferguson 

■  Neb.  482,  72  N.  W,  590,  86  Am.  St  Rep.  B12  (1897);    pushing  open 

door  iiH<i  in  place  merely  by  the  friction  of  door  against  the  sill,  Sparks  v. 

-  r.  R.  86,  29  s.  W.  264  I L895) ;   Barber  v.  State  (Tex.  Or.  App.)  69 

s.   \v.  515  (1902);    removing  props  from  a  <i \  Rose  v.  Commonwealth,    i<» 

S.   w.   245,    19  Kv.   Law   Rep.  272  (1897);    Slate  v.  Powell,  01  Kan.  81,  oS 
Pac.  968  (1899). 
*  Part  of  the  opinion  only  is  printed. 


Sec.  1)  THE   BREAKING.  555 

to  see  that  the  bolts  were  in  place,  or  if  something  had  been  accident- 
ally placed  upon  the  window  sill,  which  was  of  slight  thickness,  but 
sufficient  to  prevent  the  bolts  from  entering  the  slots,  the  raising  of 
the  window  would  have  been  a  sufficient  breaking  to  support  the 
charge.  Rex  v.  Hyams,  7  Car.  &  P.  441 ;  State  v.  Reid,  20  Iowa,  421 ; 
Lyons  v.  People,  68  111  280.  How  can  the  act  be  relieved  of  crim- 
inality by  secretly  fixing  the  window  in  the  daytime  so  that  the  bolt 
or  lock  will  not  be  effective,  and  thus  render  the  perpetration  of  the 
crime  more  easy  and  certain?  There  is  no  reason  in  such  a  rule.  In 
Lyons  v.  People,  the  door  was  left  unlocked,  and  the  court  was  re- 
quested to  instruct  the  jury  that,  in  order  to  constitute  the  crime,  it 
must  appear  that  the  door  was  secured  in  the  ordinary  way.  The  Su- 
preme Court,  in  determining  the  question,  said : 

"We  are  not  aware  of  any  authority  which  goes  to  the  extent  of 
these  instructions.  To  hold  that  the  carelessness  of  the  owner  in  se- 
curing and  guarding  his  property  shall  be  a  justification  to  the  bur- 
glar or  thief  would  leave  communities  very  much  to  the  mercy  of  this 
class  of  felons.  It  would  in  effect  be  a  premium  offered  for  their 
depredations,  by  the  removal  of  the  apprehension  of  punishment. 
Whether  property  is  guarded  or  not,  it  is  larceny  in  the  thief  who 
steals  it.  When  a  door  is  closed,  it  is  burglary  for  any  one  with  fe- 
lonious intent  to  open  it  and  enter  the  house  in  the  nighttime  without 
the  owner's  consent;  and  it  makes  no  difference  how  many  bolts  and 
bars  might  have  been  used  to  secure  it,  but  which  were  neglected." 

The  language  of  the  court  was  perhaps  too  broad  in  stating  that  if 
the  window  was  raised  any  distance,  but  was  not  sufficient  to  permit 
the  defendant  to  enter,  and  he  raised  it  further,  it  would  be  breaking 
in  the  meaning  of  the  law;2  but  the  entire  evidence  was  to  the  effect 
that  it  was  raised  so  little  as  not  to  attract  the  notice  of  the  occupant. 
We  therefore  think  that  the  jury  could  not  have  been  misled  by  the 
language. 

Judgment  affirmed.3 


REX  v.  BRICE. 
(Court  for  Crown  Cases  Reserved,  1821.    Russ.  &  R.  450.) 

The  prisoner  was  tried  before  Mr.  Justice  Burrough  at  the  Lent 
Assizes  for  the  County  of  Dorset,  in  the  year  1821,  for  burglariously 
breaking  and  entering  the  dwelling  house  of  George  Smith  in  the 
night  of  the  2d  of  December,  1820,  with  intent  feloniously  to  steal 
the  goods  and  chattels  of  the  said  George  Smith  therein  being. 

It  appeared,  by  the  evidence  of  the  wife  of  the  prosecutor,  that  whilst 

2  A  late  case,  Claiborne  v.  State,  113  Tenn.  261.  S3  S.  W.  352,  68  L.  R.  A. 
859,  106  Am.  St.  Rep.  833  (1004),  holds  this  to  be  a  breaking. 
s  Compare  Rex  v.  Smith,  Russ.  &  Ry.  417  (1S20). 


556  BURGLARY.  (Cll.  17 

sitting  in  a  room  adjoining  the  shop  (part  of  the  dwelling  house  of 
her  husband),  in  which  were  various  goods,  the  stock  of  her  hus- 
band's trade,  she  heard,  about  12  at  night,  a  noise  in  the  shop;  that 
she  took  a  candle  and  went  into  the  shop,  and,  perceiving  some  soot 
fall  from  the  chimney,  she  looked  up  and  saw  a  man  lying  across  the 
chimney,  just  above  the  mantelpiece. 

It  appeared  that  the  man  had  not  otherwise  been  in  the  shop,  and 
the  chimney  had  no  communication  with  any  other  room  in  the  house. 

An  alarm  was  made,  and  a  man,  who  proved  to  be  the  prisoner, 
was  immediately  seen  to  come  out  at  the  top  of  the  chimney.  He  was 
pursued  and  immediately  apprehended. 

The  prisoner  was  by  trade  a  chimney  sweeper,  and  had  shortly  be- 
fore been  employed  by  the  prosecutor  to  sweep  the  chimney  of  the  shop, 
and  also  that  of  the  sitting  room,  being  all  the  chimneys  in  the  house. 

The  learned  judge,  not  being  satisfied  that  the  evidence  was  suffi- 
cient to  support  the  charge  of  breaking  and  entering  into  the  dwelling 
house,  he  desired  the  jury  to  consider  whether  they  were  satisfied  that 
the  prisoner's  intention  was  to  steal  goods  in  the  shop,  and  if  they 
thought  so  he  advised  them  to  find  him  guilty,  and  he  informed  them 
that  he  should  reserve  the  other  point  for  the  opinion  of  the  judges. 

The  jury  found  the  prisoner  guilty. 

In  Easter  Term,  1821,  the  judges  met  and  considered  this  case. 
Ten  of  the  judges,  viz.,  Best,  J.,  Garrow,  B.,  Park,  J.,  Bayley,  J., 
Wood,  B.,  Graham,  B.,  Richards,  C.  B.,  Dallas,  C.  J.,  and  Abbott, 
L.  C.  J.,  held  the  conviction  right.  They  were  of  opinion  that  the  chim- 
ney was  part  of  the  dwelling  house,  that  the  getting  in  at  the  top  was 
a  breaking  of  the  dwelling  house;  and  that  the  prisoner,  by  lowering 
himself  in  the  chimney,  made  an  entry  into  the  dwelling  house.  Hol- 
royd,  J.,  and  Burrough,  J.,  thought  the  prisoner  could  not  be  said 
to  have  broken  and  entered  the  dwelling  until  he  was  below  the  chim- 
ney piece.1 


REX  v.  LEWIS. 

(Hereford  Assizes,  1827.    2  Car.  &  P.  028.) 

The  prisoners  were  indicted  for  a  burglary  in  the  house  of  John 
Vcrry  and  stealing  money,  etc.  The  house  had  been  secured  on  the 
night  before,  and  the  thieves  entered  through  a  cellar  window.  This 
window,  which  was  boarded  up,  had  in  it  a  round  aperture  of  con- 
siderable  size,  to  admit  light  into  the  cellar,  and  through  this  aperture 
one  of  the  prisonei  thrusl  his  head,  and  by  tin-  assistance  of  the  other 
he  thus  entered  the  house.  The  prisoners  did  not  enlarge  the  aper- 
ture at  all. 

i  Crawling  through  sum]]  bole  under  the  sin  is  a  breaking,  Knotta  v.  State 
fTex.  Cr.  App.)  82  s.  w.  ;>:;i'  (189S).    See,  ulso,  Preraley  v.  State,  in  Ala.  84, 

•2X)   .South.   t>17   (1886). 


■Sec.  1)  THE    BREAKING.  557 

Justice,  for  the  prisoners,  contended  that  this  was  an  open  window, 
and  therefore  it  was  no  burglary  to  enter  at  it. 

Curwood,  contra,  submitted  that  this  aperture  came  within  the  same 
reasoning  as  the  cases  of  burglary  where  the  thief  came  down  a  chim- 
ney, because  it  was  as  much  closed  as  the  nature  of  it  would  admit. 

Vaughan,  B.  Do  you  think  that,  if  a  person  leaves  a  hole  in  the 
side  of  his  house  big  enough  for  a  man  to  walk  in,  a  person  entering 
at  it  with  intent  to  steal  goods  would  be  guilty  of  a  burglary?  I  think 
not,  and  I  am  of  opinion  that  this  is  not  a  burglary. 

The  jury,  under  his  Lordship's  direction,  acquitted  the  prisoners  of 
the  burglary.1 


LE  MOTT'S  CASE. 

(Old  Bailey,   1G— .     Kelyng,  42.) 

At  the  Sessions  I  inquired  of  Le  Mott's  Case,  which  was  adjudged 
in  the  time  of  the  late  troubles,  and  my  Brother  Wyld  told  me  that 
the  case  was  this :  That  thieves  came  with  intent  to  rob  him,  and 
finding  the  door  lockt  up,  pretending  they  came  to  speak  with  him,  and 
thereupon  a  maid  servant  opened  the  door,  and  they  came  in  and  robbed 
him,  and  this  being  in  the  nighttime  this  was  adjudged  burglary  and 
the  persons  hanged,  for  their  intention  being  to  rob,  and  getting  the 
■door  open  by  a  false  pretense,  this  was  in  fraudem  legis,  and  so  they 
were  guilty  of  burglary,  though  they  did  not  actually  break  the  house, 
for  this  was  in  law  an  actual  breaking,  being  obtained  by  fraud  to 
have  the  door  opened,  as  if  men  pretend  a  warrant  to  a  constable,  and 
bring  him  along  with  them,  and  under  that  pretense  rob  the  house,  if 
it  be  in  the  night,  this  is  burglary.2 

i  In  Marshall  v.  State,  94  Ga.  589,  20  S.  E.  432  (1894),  it  was  held  that  enter- 
ing a  ginhouse  through  a  hole  made  for  the  passage  of  a  band  used  in  oper 
ating  the  machinery,  by  pushing  aside  the  band,  was  burglary. 

2  Accord:  Ducher  v.  State,  18  Ohio,  308  (1849);  State  v.  Mordecai,  6S  N. 
C.  207  (1873) ;  Johnson  v.  Commonwealth,  85  Pa.  54,  27  Am.  Rep.  G22  (1877) ; 
Nicholls  v.  State,  68  Wis.  416,  32  N.  W.  543,  60  Aim  Rep.  870  (1SS7).  Cf. 
State  v.  Henry,  31  N.  C.  463  (1849).  Entry  obtained  by  intimidation ;  State 
v.  Foster,  129  N.  C.  704,  40  S.  E.  209  (190]). 

Before  St.  12  Anne,  c.  7,  it  was  doubtful  whether,  if  the  entry  were  without 
breaking,  a  breaking  out  in  order  to  escape  was  burglary.  This  statute  declar- 
ed it  to  be  burglary.  See  2  East,  P.  C.  489.  Similar  statutes  have  been  enacted 
in  the  United  States.  See  Pen.  Code  N.  Y.,  §  498.  In  the  absence  of  statutory 
provisions,  such  broaking  is  held  not  to  be  burglary  in  Adkinson  v.  State, 
5  Baxt.  (Tenn.)  569,  30  Am.  Rep.  69  (1875) ;  Brown  v.  State,  55  Ala.  123, 
28  Am.  Rep.  693  (1876) ;  Rolland  v.  Commonwealth,  82  Pa.  306,  22  Am.  Rep. 
758  (1876).  Contra:  State  v.  Ward,  43  Conn.  489,  21  Am.  Rep.  665  (1S76) ; 
State  v.  Bee,  29  S.  C.  81,  6  S.  E.  911  (1888). 


558  BURGLARY.  (Ch    1' 

SECTION  2.— THE  ENTRY. 


REX  v.  DAVIS. 
(Court  for  Crown  Cases  Reserved,  1823.    Russ.  &  R.  499.) 

The  prisoner  was  tried  at  the  Old  Bailey  Sessions,  in  January,  1823, 
before  the  Chief  Baron  Richards,  for  burglary  in  the  dwelling  house 
of  Montague  Levyson. 

The  prosecutor,  Levyson,  who  dealt  in  watches  and  some  jewelry, 
stated  that  on  the  2d  of  January,  about  6  o'clock  in  the  evening,  as 
he  was  standing  in  Pall  Mall  opposite  his  shop,  he  watched  the  pris- 
oner, a  little  boy,  standing  by  the  window  of  the  shop,  which  was  part 
of  the  prosecutor's  dwelling  house,  and  presently  observed  the  pris- 
oner push  his  finger  against  a  pane  of  the  glass  in  the  corner  of  the 
window.  The  glass  fell  inside  by  the  force  of  his  finger.  The  prose- 
cutor added  that,  standing  as  he  did  in  the  street,  he  saw  the  forepart 
of  the  prisoner's  finger  on  the  shop  side  of  the  glass,  and  he  instantly 
apprehended  him. 

The  jury  convicted  the  prisoner;  but  the  learned  judge,  having  some 
doubt  whether  this  was  an  entry  sufficient  to  make  the  offense  a  bur- 
glary, submitted  the  case  to  the  consideration  of  the  judges. 

In  Hilarv  Term,  1823,  the  case  was  taken  into  consideration  by  the 
judges,  who  held  that  there  was  a  sufficient  entry  to  constitute  bur- 
glary. 


REGINA  v.  O'BRIEN. 

(Central  Criminal  Court,  1850.    4  Cox,  C.  C  400.) 

The  prisoner  was  indicted  for  burglary.  Evidence  was  given  that 
the  prisoner  had  lifted  up  the  sash  of  a  window,  and  that  for  the  pur- 
pose of  doing  so  his  hand  was  within  the  room  of  the  dwelling  house. 
There  was  no  further  proof  of  entry. 

O'Brien,  for  the  prisoner,  contended  that,  if  the  hand  was  there  for 
the  mere  purpose  of  opening  the  sash,  there  was  no  sufficient  entry 
proved. 

T  i.ioi  km,  J.  We  have  been  looking  into  the  authorities,  and  it 
seems  sufficient  if  the  hand,  or  any  part  of  the  person,  is  within  the 
house  for  any  purpose. 

I'atti.sox,  J.  Where  an  instrument  is  used,  the  law  appears  to  be 
different.  There  the  instrument  must  be  within  the  premises,  not  only 
for  the  purpose  of  making  an  entry,  but  also  for  the  purpose  of  effect- 
ing the  contemplated  felony,  as  where  a  hook  is  introduced  for  the  pur- 
pose of  taking  away  goods,  or  a  pistol  put  in  for  the  purpose  of  killing 
the  inmates  of  the  house,  there  the  entry  is  sufficient;    but,  if  the  in- 


Sec.  2)  THE    ENTRY.  559 

strument  is  merely  used  for  the  purpose  of  making  an  entry,  then  the 
proof  of  the  entry  fails.     We  think  there  is  sufficient  evidence  here, 
and  the  case  must  go  to  the  jury. 
Not  guilty. 


STATE  v.  CRAWFORD. 

(Supreme  Court  of  North  Dakota,  1899.    8  N.  D.  539,  80  N.  W.  193,  46  L.  R.  A. 
312,  73  Am.  St.  Rep.  772.) 

John  Crawford  was  indicted  for  burglary  in  the  third  degree  and 
acquitted  by  direction  of  the  court,  and  the  state  appeals. 

Waixin,  J.1  There  is  no  conflict  of  evidence  in  the  case,  nor  is 
there  any  dispute  between  counsel  as  to  the  facts.  The  evidence  shows 
that  at  the  time  and  place  stated  in  the  information  there  was  a  cer- 
tain building  used  as  a  granary,  in  which  there  was  stored  in  bins 
about  800  bushels  of  wheat,  and  that  in  the  nighttime  three  holes  were 
bored  with  a  two-inch  auger  through  the  walls  of  the  granary  and 
into  one  of  the  wheat  bins.  The  three  holes  were  so  connected  together 
as  to  make  one  large  opening  through  the  walls,  and  into  the  wheat 
bin.  It  further  appears  that  there  was  a  depression  in  the  mass  of 
wheat  directly  over  the  aperture  made  by  the  auger,  indicating  that 
wheat  had  passed  out  of  the  bin  through  such  aperture  to  the  amount 
of  several  bushels,  and,  further,  that  some  wheat  was  spilled  on  the 
ground  directly  under  the  opening  through  the  wall  of  the  granary. 
Other  evidence  tended  to  connect  the  defendant  with  the  felonious 
asportation  and  sale  of  the  grain.  Upon  this  evidence  the  question  , 
is  presented  whether  the  state  had  made  out  a  prima  facie  case  when 
the  evidence  closed  and  the  state  rested  its  case. 

Counsel  most  strenuously  contends  that  inasmuch  as  the  evidence 
shows  that  the  grain  was  removed  through  the  opening  made  with  an 
auger,  and  not  otherwise,  it  therefore  appears  affirmatively  that  the 
defendant  did  not  and  could  not  have  gone  into  the  building,  and  hence 
that  the  state  failed  to  establish  the  essential  element  of  an  entry. 
We  cannot  accept  this  conclusion  from  the  evidence.  It  is  manifest 
that  the  auger,  guided  by  the  person  who  bored  the  holes,  passed 
through  the  walls  of  the  granary  into  the  mass  of  wheat,  therein,  and 
also  manifest  that  it  was  the  auger  operating  within  the  building  which 
set  the  law  of  gravitation  in  motion,  and  thereby  enabled  the  man 
guiding  the  auger  to  remove  the  property  from  within  the  building 
to  the  outside.  Using  the  auger  for  the  double  purpose  of  breaking 
and  taking  possession  of  the  property  within  the  building  brings  the 
case  within  the  rule  announced  in  the  authorities  hereafter  cited. 

The  order  directing  an  acquittal  will  be  reversed  upon  the  ground 
that  it  was  error  to  hold  that  the  evidence  did  not  tend  to  establish  an 
entry. 

i  Part  of  the  opinion  is  omitted. 


360  BURGLARY.  (Cll.  17 

REX  v.  GRAY. 

(Old  Bailey,  1721.    1  Strange,  481.) 

One  of  the  servants  in  the  house  opened  his  lady's  chamber  door 
(which  was  fastened  with  a  brass  bolt)  with  design  to  commit  a  rape; 
and  King,  C.  J.,  ruled  it  to  be  burglary,  and  the  defendant  was  con- 
victed and  transported.1 


STATE  v.  MOORE. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1841.    12  N.  EI.  42.) 

Indictment  for  breaking  and  entering  the  house  of  Isaac  Paddle- 
ford,  at  Lyman,  in  the  nighttime,  on  the  19th  day  of  November,  1840, 
with  intent  to  steal,  and  stealing  therefrom  certain  pieces  of  money. 

It  appeared  in  evidence  that  the  prisoner  went  to  the  house,  which 
is  a  public  house,  and  asked  for  and  obtained  lodging  for  the  night, 
and  that  he  took  the  money  from  a  box  in  the  desk  in  the  barroom  in 
the  course  of  the  night. 

The  jury  were  instructed  that  upon  this  indictment  the  prisoner 
might  be  convicted  of  burglary,  of  entering  in  the  nighttime  and  steal- 
ing, or  of  larceny;  that  if  the  door  of  the  barroom  were  shut,  and  the 
prisoner  left  his  own  room  in  the  nighttime,  and  opened  the  door  of  the 
barroom,  or  any  other  door  in  his  way  thereto,  except  his  own  door, 
and  stole  the  money,  he  was  guilty  of  burglary;  but  that  if  he  left 
his  own  room  in  the  night,  and  stole  the  money  from  the  barroom, 
without  opening  any  door  on  his  way  thereto,  except  his  own  door, 
he  was  guilty  of  entering  in  the  nighttime  and  stealing.  The  jury 
found  the  prisoner  guilty  of  entering  in   the  nighttime  and  stealing. 

Gilchrist,  J.2  It  is  said  that,  as  the  prisoner  was  lawfully  in  the 
house,  he  cannot  be  convicted  of  the  offense  of  entering  in  the  night- 
time with  intent  to  steal. 

An  innkeeper,  holding  out  his  inn  "as  a  place  of  accommodation 
for  travelers,  cannot  prohibit  persons  who  come  under  that  character, 
in  a  proper  manner,  and  at  suitable  times,  from  entering,  so  long  as 
as  the  means  of  accommodation  for  them."  Markham  v.  Brown, 
8  X.  i  I.  528,  3]  Am.  1  tec.  209.  As  he  has  authority  to  enter  the  house, 
so  he  may  enter  any  of  the  common  public  rooms.  Markham  v. 
Brown.  The  barroom  of  an  inn  is,  from  universal  custom,  the  most 
public  room  in  the  house;    and  whether  a  traveler  may,  without  per- 

i  Accord:  Edmonds'  Case,  Button,  20  (1617);  Res  v.  Johnson,  2  Bast,  P. 
C.  488  (1786);  Rex  v.  Wenmouth,  8  Cox,  0.  C.  848  (1860);  state  v.  Scripture, 
42  N  if  485  (1861);  Roll  and  v.  Commonwealth,  85  Pa.  86,  27  Am.  Rep. 
626  (1877);  State  v.  Howard,  im  s.  (',  ::n.  vi  s.  10.  17::.  r>8  L.  R  k.  G85, 
82  An,,  st.   Rep.  804  (1902).    Of.   Reg.  v.  Davis,  0  Cox,  0.  C.  869  (1854). 

'  Part  <>f  the  opinion  Is  omit  ted. 


SCC.  3)  THE    PLACE.  56] 

mission,  enter  any  of  the  private  rooms  or  not,  he  has  clearly  a  right 
to  enter  the  barroom. 

"It  is  not  a  burglarious  breaking  and  entry,  if  a  guest  at  an  inn 
open  his  own  chamber  door,  and  takes  and  carries  away  his  host's 
goods,  for  he  has  a  right  to  open  his  own  door,  and  so  not  a  bur- 
glarious breaking."     1  Hale,  P.  C.  553,  554. 

If  a  burglary  could  not  be  committed  because  the  party  had  a  right 
to  open  his  own  door,  notwithstanding  the  subsequent  larceny,  the 
same  principle  would  seem  to  be  applicable  here,  where  the  prisoner 
had  a  right  to  enter  the  house,  and  where,  by  parity  of  reasoning,  his 
subsequent  larceny  would  not  make  his  original  entry  unlawful. 

For  these  reasons,  the  judgment  of  the  court  is  that  the  verdict  be 
set  aside  and  a 

New  trial  granted. 


SECTION  3.— THE  PLACE. 


ANONYMOUS. 

(Court  for  Crown  Cases  Reserved,  1690.     Fost  C.  D.  108.) 

At  a  meeting  of  the  judges  upon  a  special  verdict  in  January,  1690, 
they  were  divided  upon  the  question  whether  breaking  open  the  door 
of  a  cupboard  let  into  the  wall  of  the  house  was  burglary  or  not. 
Hale  saith  that  such  breaking  is  not  burglary  at  common  law.1 


RESOLUTION. 

(King's  Bench,  1593.    Poph.  52.) 

It  was  agreed  by  all  the  Justices  and  Barons  of  the  Exchequer,  upon 
an  assembly  made  at  Sergeant's  Inn,  after  search  made  for  the  an- 
cient precedents,  and  upon  good  deliberation  taken :  If  a  man  have 
two  houses,  and  inhabit  sometimes  in  one,  and  sometimes  in  the  other, 
if  that  house  in  which  he  doth  not  then  inhabit  be  broken  in  the 
night,  to  the  intent  to  steal  the  goods  then  being  in  the  house,  that 
this  is  burglary,  though  no  person  be  then  in  the  house.  *  *  *  And 
the  breaking  of  a  church  in  the  night  to  steal  the  goods  there  is  bur- 
glary, although  no  person  be  in  it,  because  this  is  the  place  to  keep  the 
goods  of  the  parish.2  And  in  the  same  manner  the  house  of  every 
one  is  the  proper  place  to  preserve  his  goods,  although  no  person  be 
there. 

i  Accord:  State  v.  Wilson,  1  N.  J.  Law,  439,  1  Am.  Dec.  216  (1793). 
2  Coke  gives  as  the  reason:     "Ecclesia  est  domus  mansionalis  omnipotent.** 
Dei."    3  Inst.  64. 

Mik.Cb.L..— 36 


562  burglaby.  (Ch.  17 

ANONYMOUS. 

(Winchester  Assizes,  1618.     Hut.  33.) 

At  the  assizes  holden  at  Winchester  in  the  last  circuite,  before  the 
Lord  Chief  Baron  Tanfield  (it  being  the  third  circuite  which  I  went 
with  him)  it  was  a  question,  whether  one  which  had  a  shop  in  the 
dwelling  house  of  another,  and  he  which  had  the  shop  worked  there- 
in in  the  day,  but  never  lodged  there,  and  yet  he  had  a  house  out  of 
the  shop  to  the  street,  if  this  shop  be  broken  in  the  night  and  divers 
goods  stolen  out  thereof,  if  it  be  burglary.  And  the  Lord  Chief  Baron 
and  I  resolved  that  it  was  no  burglary,  because  that  by  the  severance 
thereof  by  lease  to  him  which  had  it  as  a  shop,  and  his  not  inhabiting 
therein,  it  was  not  any  mansion  house  or  dwelling  house,  and  ergo  no 
burglary,  but  ordinary  felony. 


REX  v.  GARLAND. 
(Court  for  Crown  Cases  Reserved,  1776.     1  Leach  [4th  Ed.]  144.) 

At  the  Gaol  Delivery  holden  at  the  Castle  of  Taunton  in  and  for 
the  county  of  Somerset,  on  the  13th  of  March,  1776,  before  Mr. 
Baron  Eyre  and  Mr.  Baron  Hotham,  William  Garland  was  indicted 
for  burglariously  breaking  and  entering  the  dwelling  house  of  George 
Shore  with  intent  to  commit  a  felony. 

The  jury  found  the  following  verdict:  "That  the  prisoner  broke 
and  entered  in  the  nighttime  an  outhouse  in  the  possession  of  George 
Shore,  and  occupied  by  him  with  his  said  dwelling  house,  and  separated 
therefrom  by  an  open  passage  eight  feet  wide,  with  intent  to  commit 
a  felony.  That  the  said  outhouse  is  not  connected  with  the  said 
dwelling  house  by  any  fence  inclosing  both  the  said  outhouse  and 
dwelling  house,  but  whether,"  etc. 

This  case  was  referred  to  the  consideration  of  the  judges;  and  in 
the  Easter  Term  following  they  were  unanimously  of  opinion  that, 
from  the  manner  in  which  the  jury  had  found  the  facts,  it  was  im- 
possible to  consider  this  outhouse  as  part  of  the  dwelling  house,  for 
they  should  have  found  it  parcel  of  the  dwelling  house  if  it  were  so ; 
for  the  outhouse,  being  so  separated  from  the  dwelling  house  and 
not  within  the  same  curtilage  or  common  fence,  was  not  therefore  pro- 
tected by  the  bare  fact  of  its  being  so  occupied  with  it  at  the  same 
time,  and  therefore,  as  the  burglary  was  the  only  offense  charged  in 
the  indictment,  the  prisoner  must  be  acquitted.1 

i  i (Minus  manslonallfl  doth  doI  only  Include  tin*  dwelling  bouse,  but  also 

the  outhouses  thai  are  parcel  thereof,  ;is  barns,  stables,  row  houses,  dairy 

houses,  it'  they  are  parcel  of  the  messuage!  thougb  they  are  do1   under  die 

k:ihi<-  roof,  adjoining  or  contiguous  to  it.    Co.  P.  O  64;    Dalton,  254;    i  Bale, 

\ii.i  it  was  agreed  by  all  the  Judges  In  the  time  of  r>.  c  J.  Hyde,  that 


Sec  3)  THE   FLACK.  663 

REX  v.  HARRIS. 
(Old  Bailey,  1795.    2  Leach  [4th  Ed.]  701.) 

At  the  Old  Bailey  in  October  Session,  1795,  John  Harris  was  tried 
before  the  Recorder  of  London  for  burglariously  breaking  and  enter- 
ing the  dwelling  house  of  Henry  William  Dinsdale,  on  the  6th  of 
October,  and  stealing  therein  a  gold  watch,  value  £10,  the  goods  of 
the  said  William  Dinsdale. 

It  appeared  in  evidence  that  Mr.  Dinsdale  had  lately  taken  the 
house  in  Queen  street,  in  Cheapside,  but  had  never  slept  in  it  himself ; 
but  on  the  night  of  the  burglary,  and  for  six  nights  before,  had  pro- 
cured two  hairdressers,  of  the  names  of  Thomas  Nash  and  James 
Chamberlain,  who  resided  at  St.  Ann's  lane,  near  Maiden  lane,  in 
Wood  street,  but  in  no  situation  of  servitude  to  the  prosecutor,  to 
sleep  in  this  house  for  the  purpose  of  taking  care  of  the  goods  and 
merchandise  belonging  to  Mr.  Dinsdale,  which  were  deposited  in  the 
house. 

The  Court  was  of  opinion  that  as  the  prosecutor  had  only  so  far 
taken  possession  of  the  house  as  to  deposit  certain  articles  of  his  trade 
therein,  but  had  neither  slept  in  it  himself,  nor  had  any  of  his  serv- 
ants, it  could  not,  in  contemplation  of  law,  be  called  his  dwelling  house. 

The  jury,  therefore,  under  the  direction  of  the  court,  found  him 
guilty  of  the  larceny  only,  but  not  guilty  of  stealing  in  a  dwelling 
house,  or  of  the  burglary;  and  he  was  sentenced  to  transportation 
for  seven  years. 


QUINN  v.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1878.     71  N.  Y.  561,  27  Am.   Rep.  87.) 

Folger,  J.1  The  plaintiff  in  error  was  indicted  of  the  crime  of 
burglary  in  the  first  degree,  under  the  section  of  the  Revised  Stat- 
utes defining  that  crime.  2  Rev.  St.  (1st  Ed.)  p.  668,  pt.  4,  c.  1,  tit, 
2,  §  10,  subd.  1.  The  crime,  as  there  defined,  consists  in  breaking 
into  and  entering  in  the  nighttime,  in  the  manner  there  specified,  the 
dwelling  house  of  another,  in  which  there  is  at  the  time  some  human 
being,  with  the  intent  to  commit  some  crime  therein.  The  evidence 
given  upon  the  trial  showed  clearly  enough  the  breaking  and  enter- 

the  breaking  and  entering,  in  the  nighttime,  a  bake  house,  eight  or  nine 
yards  distant  from  the  dwelling  house,  and  only  a  pale  reaching  between 
them,  was  burglary.  Castle's  Case,  1  Hale,  558.  But  if  the  outhouse  be  far 
remote  from  the  dwelling  house,  so  as  not  to  be  reasonably  esteemed  parcel 
thereof,  as  if  it  stand  a  bowshot  off,  and  not  within  or  near  the  curtilage  of 
the  chief  house,  it  is  not  domus  mansionalis,  nor  any  part  thereof.  Year  Book, 
2  Edw.  VI,  Bro.  Cor.  180,  1  Hale,  559.  See,  also,  Greenes  Case,  Old  Bailey, 
February  Session,  17S9,  before  Mr.  Baron  Thompson  and  Mr.  Justice  Grose. 
Rep. 

i  Part  of  the  opinion  is  omitted. 


564  BURGLARY.  (Cll.  17 

ing  and  the  criminal  intent.  The  questions  mooted  in  this  court  are 
whether  it  is  legally  proper,  in  an  indictment  for  burglary  of  a  dwelling 
house,  to  aver  the  ownership  of  the  building  in  a  partnership,  and 
whether  the  proof  showed  that  the  room  entered  was  a  dwelling  house 
within  the  intent  of  the  statute. 

As  to  the  second  question :  It  is  needed  only  to  note  that  there  was 
an  internal  communication  between  the  two  stores,  in  the  lower  stories 
of  the  buildings,  but  none  between  them  and  the  upper  rooms,  in  which 
one  of  the  partners  and  other  persons  lived.  The  room  into  which 
the  plaintiff  in  error  broke  was  used  for  business  purposes  only,  but 
it  was  within  the  same  four  outer  walls,  and  under  the  same  roof  as 
the  other  rooms  of  the  buildings.  To  pass  from  the  rooms  used  for 
business  purposes  to  the  rooms  used  for  living  in,  it  was  necessary  to 
go  out  of  doors  into  a  yard  fenced  in,  and  from  thence  upstairs.  The 
unlawful  entering  of  the  plaintiff"  in  error  was  into  one  of  the  lower 
rooms  used  for  trade,  and  into  that  only.  The  point  made  is  that  as 
there  was  no  internal  communication  from  that  room  to  the  rooms 
used  for  dwellings,  and  as  that  room  was  not  necessary  for  the  dwelling 
rooms,  there  was  not  a  breaking  into  a  dwelling  house,  and  hence 
the  act  was  not  burglary  in  the  first  degree  as  defined  by  the  Revised 
Statutes  as  cited  above.  In  considering  this  point,  I  will  first  say,  that 
the  definition  of  the  crime  of  burglary  in  the  first  degree,  given  by 
the  Revised  Statutes,  does  not,  so  far  as  this  question  is  concerned, 
materially  differ  from  the  definition  of  the  crime  of  burglary  as  given 
at  common  law,  to  wit,  "a  breaking  and  entering  the  mansion  house 
of  another  in  the  night,  with  intent  to  commit  some  felony  within  the 
same.  *  *  *  "  2  Russ.  on  Cr.  p.  1,  §  785.  It  will,  therefore,  throw 
light  upon  this  question  to  ascertain  what  buildings  or  rooms  were,  at 
common  law,  held  to  be  dwelling  houses  or  a  part  thereof,  so  as  to 
be  the  subject  of  burglary ;  for,  as  far  as  the  Revised  Statutes  as  al- 
ready cited  are  concerned,  what  was  a  dwelling  house  or  a  part  there- 
of at  common  law  must  also  be  one  under  those  statutes.  Now,  at 
common  law,  before  the  adoption  of  the  Revised  Statutes,  it  had 
been  held  that  it  was  not  needful  that  there  should  be  an  internal 
communication  between  the  room  or  building  in  which  the  owner 
dwelt,  if  the  two  rooms  or  buildings  were  in  the  same  inclosnre,  and 
built  close  to  and  adjoining  each  other.  Case  of  Gibson,  Mut- 
ton &  Wiggs,  Leach's  Cr.  Cas.  320  (Case  1G5),  recognized  in  People 
v.  Parker,  I  Johns.  423.  In  the  case  from  Leach,  there  was  a  shop 
built  close  to  a  dwelling  house  in  which  the  prosecutor  resided.  There 
was  no  interna]  communication  between  them.  No  person  slept  in 
the  hop.  The  only  door  to  it  was  in  the  courtyard  before  the  house 
bop,  which  yard  was  inclosed  by  a  brick  wall,  including  them 

within   it,  with   a   gate   in   the   wall   serving   for  ingress  to  them.     The 

ng  and  entering  was  into  the    hop.    (  objection  was  taken  thai  it 

could  not  be  considered  the  dwelling  house  of  the  prosecutor,  and  the 

re  erved  for  the  con  ideration  of  the  twelve  judges.    They 


Sec.  3)  THE   PLACE.  565 

were  all  of  the  opinion  that  the  shop  was  to  be  considered  a  part  of  the 
dwelling  house,  being  within  the  same  building  and  the  same  roof, 
though  there  was  only  one  door  to  the  shop,  that  from  the  outside, 
and  that  the  prisoners  had  been  duly  convicted  of  burglary  in  a  dwelling 
house.  The  case  in  Johnson's  Reports,  supra,  is  also  significant,  from 
the  facts  relied  upon  there  to  distinguish  it  from  the  case  in  Leach, 
supra.  Those  facts  were  that  the  shop  entered,  in  which  no  one  slept 
though  on  the  same  lot  with  the  dwelling  house,  was  20  feet  from  it 
not  inclosed  by  the  same  fence,  nor  connected  by  a  fence,  and  both 
open  to  a  street.  The  court  said  that  they  were  not  within  the  same 
curtilage,  as  there  was  no  fence  or  yard  inclosing  both,  so  as  to  bring 
them  within  one  inclosure.  Therefore  the  case  was  within  that  of 
The  King  v.  Garland,  1  Leach,  Cr.  Cas.  130  (or  171),  Case  77.  It 
has  been  urged,  in  the  consideration  of  the  case  in  hand,  that  though 
the  common  law  did  go  farther  than  the  cases  above  cited,  and  did 
deem  all  outhouses,  when  they  were  within  the  same  inclosure  as  the 
dwelling  house,  a  part  of  it,  yet  that  they  must,  to  be  so  held,  be  build- 
ings or  rooms  the  use  of  which  subserved  a  domestic  purpose,  and 
were  thus  essential  or  convenient  for  the  enjoyment  of  the  dwelling 
house  as  such.  Gibson's  Case,  supra,  would  alone  dispose  of  that. 
The  building  there  entered  was  not  only  of  itself  a  shop  for  trade, 
but  it  was  in  the  use  and  occupation  of  a  person  other  than  the  owner 
of  the  dwelling  house.  The  books  have  many  cases  to  the  same  end. 
Rex  v.  Gibbons  &  Kew,  Russ.  &  Ry.  442,  the  case  of  a  shop ;  Robert- 
son's Case,  4  City  Hall  Rec.  63,  also  a  shop,  with  no  internal  com- 
munications with  the  dwelling  house;  Rex  v.  Stock  et  al.,  Russ.  & 
Ry.  185,  a  counting  room  of  bankers;  Ex  parte  Vincent,  26  Ala.  145, 
62  Am.  Dec.  714,  one  room  in  a  house  used  as  a  wareroom  for  goods ; 
Rex  v.  Witt,  Ry.  &  M.  248,  an  office  for  business,  below  lodging 
rooms.  Indeed,  the  essence  of  the  crime  of  burglary  at  common  law 
is  the  midnight  terror  excited,  and  the  liability  created  by  it  of  danger 
to  human  life,  growing  out  of  the  attempt  to  defend  property  from 
depredation.  It  is  plain  that  both  of  these  may  arise  when  the  place 
entered  is  in  close  contiguity  with  the  place  of  the  owner's  repose, 
though  the  former  has  no  relation  to  the  latter  by  reason  of  domestic 
use  or  adaptation.  Besides,  the  cases  have  disregarded  the  fact  of 
domestic  use,  necessity,  or  convenience,  and  have  found  the  criterion 
in  the  physical  or  legal  severance  of  the  two  departments  or  build- 
ings. Rex  v.  Jenkins,  Russ.  &  Ry.  244;  Rex  v.  Westwood,  Id.  495, 
where  the  separation  of  the  buildings  was  by  a  narrow  way,  both  of 
them  being  used  for  the  same  family  domestic  purposes.  It  is  not  to 
be  denied  that  there  are  some  cases  which  do  put  just  the  difference 
above  noted,  as  now  urged  for  the  plaintiff  in  error  (State  v.  Lang- 
ford,  12  N.  C.  253 ;  State  v.  Jenkins,  50  N.  C.  430 ;  State  v.  Bryant 
Ginns,  1  Nott  &  McC.  [S.  C]  5S3),  though,  in  the  case  last  cited,  it 
is  conceded  that  if  a  store  is  entered,  which  is  a  part  of  a  dwelling 
house,  by  being  under  the  same  roof,  the  crime  is  committed;  and  it 


566  BURGLARY.  (Ch.  17 

must  be  so,  if  it  is  the  circumstance  of  midnight  terror  in  breaking 
open  a  dwelling  house  which  is  a  chief  ingredient  of  the  crime  of 
burglary,  and  it  is  for  that  reason  that  barns  and  other  outhouses,  if 
in  proximity  to  the  mansion  house,  are  deemed  quasi  dwelling  houses, 
and  entitled  to  the  same  protection  (State  v.  Brooks,  4  Conn.  446— 149). 
Coke,  3  Inst.  64,  is  cited  to  show  that  only  those  buildings  or  places 
which  in  their  nature  and  recognized  use  are  intended  for  the  domestic 
comfort  and  convenience  of  the  owner  may  be  the  subject  of  bur- 
glary at  common  law ;  but  in  the  same  book  and  at  the  same  page  the 
author  also  says:  "But  a  shop  wherein  any  person  doth  converse" — 
i.  e.,  be  employed  or  engaged  with;  Richardson's  Die.  "in  voce" — 
"being  a  parcel  of  a  mansion  house,  or  not  parcel,  is  taken  for  a  man- 
sion house."  So  Hale  is  cited  (1  P.  C.  558)  ;  and  it  is  there  said  that 
"to  this  day  it  is  holden  no  burglary  to  break  open  such  a  shop."  But 
what  does  he  mean  by  that  phrase?  That  appears  from  the  authority 
which  he  cites,  Hutton's  Reps.  33,  where  it  was  held  no  burglary  to 
break  and  enter  a  shop,  held  by  one  as  a  tenant  in  the  house  of  another, 
in  which  the  tenant  worked  by  day,  but  neither  he  nor  the  owner 
slept  by  night.  And  the  reason  given  is  the  one  above  noticed,  and 
often  recognized  by  the  cases,  that  by  the  leasing  there  was  a  severance 
in  law  of  the  shop  from  the  dwelling  house.  But  Hale  also  (1  P.  C. 
557)  cites  as  law  the  passage  from  the  Institutes  above  quoted.  Other 
citations  from  text-books  are  made  by  the  plaintiff  in  error.  They  will 
be  found  to  the  same  effect,  and  subject  to  the  same  distinction  as 
those  from  Coke  and  Hale.  And  see  Rex  v.  Gibbons  et  al.,  supra : 
Rex  v.  Richard  Carroll,  1  Leach,  Cr.  Cas.  272  (Case  115).  That  there 
must  be  a  dwelling  house,  to  which  the  shop,  room,  or  other  place 
entered  belongs  as  a  part,  admits  of  no  doubt.  To  this  effect,  and  no 
more,  are  the  cases  cited  by  the  plaintiff  in  error  of  Rex  v.  Harris, 
2  Leach,  701,  Rex  v.  Davies,  alias  Silk,  Id.  876,  and  the  like.  There 
were  cases  which  went  further  than  anything  I  have  asserted.  They 
did  not  exact  that  the  building  entered  should  be  close  to  or  adjoining 
the  dwelling  house,  but  held  the  crime  committed  if  the  building  en- 
tered was  within  the  same  fence  or  inclosure  as  the  building  slept  in. 
And  the  dwelling  house  in  which  burglary  might  be  committed  was 
held  formerly  to  include  outhouses — such  as  warehouses,  barns,  stables, 
cow  houses,  dairy  houses — though  not  under  the  same  roof  or  joining 
contiguous  to  the  house,  provided  they  were  parcel  thereof.  1  Russ. 
on  Cr.  *799,  and  authorities  cited.  Any  outhouse  within  the  curtilage 
or  same  common  fence  with  the  dwelling  house  itself  was  considered 
to  be  parcel  of  it,  on  the  ground  that  the  capital  house  protected  and 
privileged  all  its  branches  and  appurtenants,  if  within  the  curtilage  or 
homcstall.  State  v.  Twitty,  2  N.  C.  102;  State  v.  Wilson,  Id.  242. 
See,  also,  State  v.  Ginns,  1  Nott  &  McC.  (S.  C.)  5S5,  where  this  is 
conceded  to  be  the  common  law.  See  note  "a"  to  Garland's  Cast-, 
upra. 
[t    eeni    clear  thai  at  common  law  the  shop  which  the  plaintiff  in 

r  broke  into  would  have  been  held  a  pari   "I   a  dwelling  house. 


Sec.  3)  THE  PLACE.  667 

I  am  brought  to  the  conclusion  that  upon  the  facts  proven  the  plain- 
tiff in  error  was  properly  indicted  and  convicted  of  the  statutory  crime 
of  burglary  in  the  first  degree. 

Allen,  Miller,  and  Earl,  JJ.,  concur.  Rapallo  and  Andrews, 
JJ.,  dissent.    Church,  C.  J.,  not  voting. 

Judgment  affirmed. 


568  akson.  (Ch.  18 

CHAPTER  XVIII. 

ARSON. 


Let  inquiry  also  be  made  of  those  who  feloniously,  in  time  of  peace, 
have  burnt  others'  corn  or  houses,  and  those  who  are  attainted  thereof 
shall  be  burnt,  so  that  they  may  be  punished  in  like  manner  as  they 
have  offended. 

Britton  (Nicholls'  Trans.)  47. 

It  extendeth  not  only  to  the  very  dwelling  house,  but  to  all  out- 
houses that  are  parcel  thereof,  though  not  contiguous  to  it,  or  under 
the  same  roof,  as  in  case  of  burglary. 

1  Hale,  P.  C.  567. 

To  a  charge  of  arson  one  may  say  that  the  event  was  the  outcome 
of  mischance  and  not  of  forethought  felony. 

Mirror  of  Justices  (Sel.  Soc.)  c.  17. 

If  A.  shoot  unlawfully,  in  a  hand  gun,  suppose  it  to  be  at  the  cattle 
or  poultry  of  B.,  and  the  fire  thereof  sets  another's  house  on  fire,  this 
is  not  felony,  for  though  the  act  he  was  doing  were  unlawful,  yet  he 
had  no  intention  to  burn  the  house  thereby,  against  the  opinion  of 
Dalt.  p.  270,  c.  105.  But  if  A.  have  a  malicious  intent  to  burn  the 
house  of  B.,  and  in  setting  fire  to  it  burns  the  house  of  B.  and  C,  or 
the  house  of  B.  escapes  by  some  accident,  and  the  fire  takes  in  the 
house  of  C.  and  burneth  it,  though  A.  did  not  intend  to  burn  the  house 
of  C,  yet  in  law  it  shall  be  said  the  malicious  and  willful  burning  of 
the  house  of  C,  and  he  may  be  indicted  for  the  malicious  and  willful 
burning  of  the  house  of  C. 

1  Hale,  P.  C.  569. 


REX  v.  HARRIS. 

(King's  Bench,  17").'?.    Fost.  G.  L.  113.) 

At   Aylesbury,   Lent   Assizes,    1753,    before    Mr.    Justice   Denison. 

Elizabeth  1  [arris,  a  girl  of  14  years  of  age  and  of  sufficient  understand 

ing    for   her   years,    was    indicted    for   maliciously   setting   tire   to   and 

burning  a  dwelling  house  in  the  p  on  of  Edward  Stokes,  and 

,  the  wife  of  William  Course,  was  indicted  as  an  accessory  to  the 

fore  the  fact. 

Tin-  prisoner  Elizabeth  was  the  daughter  of  the  prisoner  Anne  by 
a  former  husband,  John  Harris.    It  appeared  in  evidence  at  the  trial 
that  [ohn  I  tarris  died  seised  of  the  equity  of  n  demption  of  this  h 
and  of  another  adjoining  to  it.  subject  to  a  mortgage  term   for  £20, 


ARSON.  5G9 

and  that  the  equity  descended  to  his  eldest  son,  a  child  left  with  other 
children  under  the  care  of  their  mother,  the  prisoner  Anne,  who  was 
entitled  to  dower  out  of  these  houses,  but  no  dower  was  ever  assigned; 
that  Anne,  having  the  care  of  her  son  and  his  estate,  let  these  houses 
to  Edward  Stokes  at  the  rent  of  £5  a  year,  and  received  the  rent  for 
some  time,  but,  having  a  large  family  of  children,  she  was  obliged  to 
ask  relief  of  the  parish  where  she  lived;  that  she  was  denied  such 
relief  on  account  of  these  houses,  the  parishioners  insisting  that  the 
overseers  of  the  poor  should  be  let  into  the  receipt  of  the  rent  before 
she  should  be  entitled  to  any  parochial  relief;  that  thereupon  she 
frequently  declared  she  would  set  the  housing  on  fire  if  the  parish 
did  not  relieve  her;  that  she  had  young  children  whom  the  parish 
could  not  punish,  though  they  might  punish  her,  and  she  would  order 
the  least  child  she  had  who  could  carry  a  coal  of  fire  to  burn  the 
housing  down ;  and  many  other  declarations  of  the  like  kind  she  made, 
which  discovered  an  obstinate  resolution  in  her  to  burn  the  houses 
rather  than  submit  to  the  terms  the  parishioners  insisted  on. 

It  appeared  further  that  the  prisoner  Elizabeth  set  the  house  on  fire 
by  the  direction  of  the  prisoner  Anne,  who  went  from  home  on  pur- 
pose to  be  absent  at  the  time  the  fact  was  committed,  and  that  no  other 
house  was  burnt. 

The  jury  found  both  the  prisoners  guilty.  But  a  doubt  arising  by 
reason  of  the  interest  the  prisoner  had  in  the  house,  Mr.  Justice  Deni- 
son  thought  proper  to  respite  judgment  in  order  to  take  the  opinion 
of  the  judges  on  the  case. 

July  2,  1753.  At  a  meeting  of  the  judges  at  the  Chief  Justice's 
chambers  it  was  unanimously  agreed  that  both  the  prisoners  are  guilty 
of  felony.  The  only  doubt  was  with  regard  to  the  interest  the  prisoner 
Anne  had  in  the  house,  and  it  was  grounded  on  the  reasoning  in 
Holmes'  Case ;  for  had  she  had  such  estate  in  the  house  as  would  have 
cleared  her  of  the  charge  of  felony,  the  prisoner  Elizabeth,  who  acted 
by  her  directions,  could  not  have  been  guilty  of  felony. 

But  all  the  judges  agreed  that  the  prisoner  Anne's  title  to  dower 
was  not  such  an  interest  as  could  bring  her  within  the  rule  in  Holmes' 
Case.  Holmes  had  the  possession  by  legal  title,  and  during  the  con- 
tinuance of  his  lease  could  maintain  his  possession  against  all  mankind, 
and  therefore  the  house  might  in  a  limited  sense  be  called  his  own ; 
but  in  the  present  case  the  possession  was  in  Edward  Stokes  under  a 
demise  from  Anne  in  behalf  of  her  son,  and  subject  to  a  yearly  rent 
which  she  received.  And  her  title  to  dower,  had  Edward  Stokes'  in- 
terest been  out  of  the  case,  did  not  so  much  as  give  her  a  right  of 
entry,  it  being  a  bare  right  of  action. 

Mr.  Justice  Denison  said  that  he  had  no  doubt  upon  him  from  the 
beginning;  but  it  being  a  new  case,  and  some  of  the  bar  being  doubt- 
ful, he  thought  it  advisable  to  take  the  opinion  of  the  judges. 

At  the  next  assizes  judgment  of  death  was  pronounced  upon  both 
the  prisoners,  and  Anne  was  executed;    but  Elizabeth,  being  young 


570  arson.  (Ch.  18 

and  acting  under  her  mother's  direction,  was  reprieved  and  recom- 
mended to  mercy  on  condition  of  transportation. 

It  was  said  in  the  debate  of  this  case  by  some  of  the  judges,  and  not 
denied  by  any,  that  had  Anne  been  seised  of  the  freehold  and  inherit- 
ance of  the  house,  and  Stokes  in  possession  under  a  lease,  it  would 
have  been  felony  in  Anne  to  have  burnt  it;  otherwise  all  tenants  and 
their  concerns  would  be  very  much  at  the  mercy  of  their  landlords.1 

The  principle  three  of  the  judges  went  upon  in  Holmes'  Case  (for 
Croke  did  not  concur  in  the  judgment)  doth  seem  to  warrant  this 
opinion.  They  considered  the  house  then  under  consideration  as  the 
property  of  Holmes,  as  his  own  house,  by  reason  of  the  estate  he  had 
in  it  under  his  lease.  Croke  did  not  dispute  the  principle,  but  argued 
against  the  conclusion  the  other  judges  drew  from  it;  and,  if  this  be 
so,  I  do  not  see  why  it  may  not  with  strict  legal  propriety  be  said  of 
a  reversioner,  who  should  maliciously  set  fire  to  houses  in  the  posses- 
sion of  his  tenants  under  leases  from  himself  or  his  ancestors,  that  he 
aedes  alienas  combussit. 


REX  v.  GOWEN. 
(King's  Bench,  1786.     1  Leach  [4th  Ed.]  462,  note.) 

William  Gowen  was  convicted  before  L.  C.  B.  Skinner,  of  arson. 
The  house  he  burned  was  rented  by  one  Richard  Dobney,  named  in 
the  first  count  as  the  owner,  and  let  by  him  from  year  to  year  to  the 
parish  officers  of  Laxfield,  who  paid  the  rent  for  it,  and  who  were,  at 
the  time  of  burning  the  house,  the  persons  named  (individually)  in 
the  third  count  of  the  indictment.  The  prisoner  was  a  parish  pauper, 
and  had  been  put  into  the  house  by  the  overseers  to  live  there.  He  had 
the  sole  possession  and  occupation  of  it  without  paying  any  rent,  and 
was  resident  therein  with  his  family  at  the  time  the  fact  was  commit- 
ted, and  on  reference  to  the  judges  they  all  held  that  the  prisoner  had 
no  interest  in  the  house,  but  was  merely  a  servant,  and  therefore  it 
could  not  be  said  to  be  his  house,  but  that  the  overseers  had  the  pos- 
session of  it  by  means  of  his  occupation,  and  they  accordingly  held 
that  he  had  been  properly  convicted." 

i  See  accord:  Sullivan  v.  State,  5  Stew.  &  P.  (Ala.)  175  (1834) ;  Brsklne  v. 
Commonwealth,  8  Crat.  (Va.)  G24  (1851);  State  v.  Toole,  29  Conn.  342,  76 
Am.  Dec.  802  (I860);    Hannlgan  v.  State,  131  Ala.  29,  31  South.  89  (1901). 

2  Compare  Rex  v.  Wall  is,  1  Moody,  344  (1882). 


ARSON.  571 


REGINA  v.  RUSSELL,. 

(Berkshire  Assizes,  1842.    Car.  &  M.  541.) 

Arson.  The  prisoner  was  indicted  for  maliciously  setting  fire  to 
the  house  of  Ann  Wright,  at  Old  Windsor. 

On  the  part  of  the  prosecution  Miss  Wright  was  called.  She  said : 
"The  prisoner  was  in  my  service.  Very  early  on  the  morning  of  the 
4th  of  December,  I  perceived  smoke  and  got  up,  and  on  my  going 
down  stairs  I  found  a  small  fagot  lighted  and  burning  on  the  boarded 
floor  of  the  kitchen,  about  four  feet  from  the  hearthstone.  I  took  up 
the  burning  wood  and  put  it  into  the  grate.  A  part  of  the  boards  of 
the  kitchen  floor  was  scorched  black,  but  not  burnt.  The  fagot  was 
nearly  consumed,  but  no  part  of  the  wood  of  the  floor  was  consumed. 

Cresswell,  J.  The  case  of  Regina  v.  Parker,  9  C.  P.  45,  38  E.  C. 
L.  R.  29, a  is  the  nearest  to  the  present,  but  I  think  it  is  distinguishable. 

Carrington,  for  the  prisoner.  I  submit  that  the  wood  of  the  floor 
being  scorched  is  not  sufficient  to  constitute  this  offense,  as  wood  may 
be  scorched  without  being  actually  on  fire. 

Cresswell,  J.  I  have  conferred  with  my  Brother  Patteson,  and 
he  concurs  with  me  in  thinking  that  as  the  wood  of  the  floor  was 
scorched,  but  no  part  of  it  consumed,  the  present  indictment  cannot 
be  supported.  We  think  that  it  is  not  essential  to  this  offense  that 
wood  should  be  in  a  blaze,  because  some  species  of  wood  will  burn 
and  entirely  consume  without  blazing  at  all.  The  prisoner  must  be 
acquitted. 

Verdict — Not  guilty. 

i  In  that  case  the  wood  of  the  floor  was  "charred  in  a  trifling  way,  It  had 
been  at  a  red  heat,  but  not  in  a  blaze,"  and  this  was  held  a  sufficient  burning 
to  support  an   indictment  for  arson. 


572  FOKGERY.  (Cb.  19 


CHAPTER  XIX. 
FORGERY. 


Definition — The  false  making  or  alteration  of  any  written  instrument 
whereby  another  may  be  prejudiced,  with  intent  to  deceive  and  defraud. 
2  East,  P.  C.  840. 


SECTION  1.— THE  INSTRUMENT. 


REX  v.  WARD. 

(King's  Bench,  1726.     2  Str.  747.) 

An  information  was  exhibited  in  the  name  of  the  Attorney  General, 
charging  that  Mr.  Ward,  existens  onerabilis  to  deliver  to  the  Duke  of 
Bucks  315  tons  and  1  quarter  of  alum  ad  certum  diem  jam  prseteritam, 
did,  with  intent  to  defraud  him  thereof,  forge  an  indorsement  on  the 
back  of  a  certificate  in  the  words  and  figures  following:  "Mr.  John 
Ward :  I  hereby  order  you  to  charge  660  tons  and  1  quarter  of  alum 
to  my  account,  part  of  the  quantity  here  mentioned  in  this  certificate, 
and  for  your  so  doing  this  shall  be  your  discharge.  Buckingham. 
April  30,  1706."  The  information  likewise  charges  a  publication  of 
it  knowing  it  to  be  forged.  Upon  not  guilty  pleaded,  it  was  tried  at 
the  bar,  and  a  verdict  found  for  the  king  in  Easter  Term  12  Geo. 
The  defendant  absconded  till  the  last  day  of  Michaelmas  Term,  when 
he  voluntarily  came  into  court,  and  desired  to  be  bailed ;  but  the  court 
refused  it,  and  so  he  was  committed. 

And  now  in  Hilary  Term  his  counsel  (Mr.  Hungerford,  Mr. 
Ketelbey,  Mr.  Filmer,  Mr.  Bootlc,  and  Mr.  Strange)  took  some  ob- 
jections in  arrest  of  judgment,  and  what  they  principally  relied  upon 
were  these: 

1.  That  this  is  not  such  a  paper  of  which  a  forgery  could  be  com- 
1  at  common  law.  This  is  laid  as  an  offense  at  common  law; 
and  Hawkins  in  his  I'leas  of  the  Crown,  L82,  says  that  it  must  be  a  mat- 
:  record,  or  any  other  authentic  matter  of  a  public  nature,  as  a 
de<  '1  or  will.  Other  w  ritings  of  an  inferior  nature,  as  forging  tin-  hand 
■  if  an  authority  to  receive  rent,  counterfeiting  a  letter  made  in  an- 
other man'-,  name,  etc.,  arc  (says  lie)  more  properly  punishable  as 
cheats  on  St.  33  Hen.  \  III.  c.  1.  In  Cro.  Eliz.  l<;<i,  it  is  held  nol  ac- 
tionable to  say,  "You  have  fal  ely  forged  your  father's  hand,  and  there- 


Sec.  1)  THE    INSTRUMENT.  573 

by  falsely  have  procured  your  father's  tenants  to  pay  their  rent  to 
you,"  because  it  would  not  be  forgery  if  he  had  done  so.  1  Rolle, 
Abr.  66.1 

Mr.  Attorney,  Mr.  Lee,  Mr.  Marsh,  Mr.  Fazakerley,  and  Mr.  Verney, 
e  contra,  argued  that  this  was  a  forgery  at  common  law,  and  that  it 
was  the  highest  reflection  upon  the  law  to  imagine  there  ever  was  a 
time  wherein  such  a  fact  as  this  was  not  punishable  by  the  law  of 
England.  As  to  the  passage  in  Hawkins,  it  is  not  warranted  by  the 
authorities  quoted  in  the  margin,  and  he  has  laid  it  down  much  too 
large.  Sti.  12,  is  an  indictment  at  common  law  for  forging  letters  of 
credit  to  raise  money,  and  nobody  imagined  it  did  not  lie ;  and  there 
it  is  not  laid  that  he  actually  received  money  upon  it,  which  makes 
the  case  an  answer  to  both  exceptions.  5  Mod.  137;  Salk.  342.  In- 
dictment for  forging  a  bill  of  lading.  2  Sid.  142.  Counterfeiting  a 
protection  from  a  member  of  Parliament.  Salk.  406,  Hil.  32  Car.  II, 
rot.  35,  Rex  v.  Sheldon,  for  forging  a  bill  of  exchange,  Ray,  81. 
The  like  for  forging  a  warrant  of  attorney.  Mich.  6  Geo.  Rex  v. 
Ward  (a  brother  of  the  defendant).  Indictment  for  forging  a  promis- 
sory note,  and  laid  at  common  law,  and  never  imagined  it  was  not  an 
offense ;  and  the  defendant  was  convicted.  1  Sid.  71.  3  Leon.  170, 
is  for  forging  the  entry  of  a  marriage.  It  could  not  be  an  indictment 
as  a  cheat  on  St.  33  Hen.  VIII,  because  there  must  be  an  actual  ob- 
taining upon  that  statute. 

Per  Curiam.  As  there  is  no  judicial  authority  on  either  side,  we 
must  take  it  up  upon  the  reason  of  the  thing.  There  is  no  reason 
why  this  should  not  be  punished  as  a  forgery,  as  well  as  if  it  were  a 
deed.  The  injury  may  be  as  great,  or  greater,  for  the  value  may  be 
£100,000  in  one  case,  and  a  deed  perhaps  affect  only  a  single  acre  of 
land.  St.  5  Eliz.  shows  this  to  be  a  crime,  by  using  the  word  "writ- 
ings," in  contradistinction  to  deeds.  It  cannot  be  prosecuted  as  a 
cheat  at  common  law,  without  an  actual  prejudice,  and  that  is  an  ob- 
taining on  St.  33  Hen.  VIII.  The  case  cited  out  of  Cro.  is  not  law, 
and  surely  those  words  are  actionable.  Regina  v.  Travers  was  for 
forging  an  indorsement  on  an  army  debenture,  and  laid  as  at  common 
law.  The  reason  why  we  do  not  meet  with  ancient  determinations  is 
because  personal  credit  was  formerly  small,  and  these  writings  not 
made  use  of.  It  is  not  necessary  to  show  an  actual  prejudice,  a  pos- 
sibility is  enough;  and  here  it  appears  there  would  have  been  one,  if 
the  forgery  had  stood.     Judicium  pro  rege. 

Afterwards  he  was  sentenced  to  stand  in  the  pillory  before  West- 
minster Hall  gate  (which  he  did),  to  pay  £500  and  find  securities  for 
seven  years,  and  commitment  till  all  was  performed. 

i  Parts  of  the  arguments  of  counsel  are  omitted. 


574  FORGERY.  (Ch.  19 

REGINA  v.  SMITH. 
(Court  of  Criminal  Appeal,  1858.    8  Cox,  C.  C.  32.) 

Case  reserved  and  stated  by  the  Recorder  of  London: 

John  Smith  was  tried  before  me  at  the  Central  Criminal  Court, 
upon  an  indictment  charging  him  with  forging  certain  documents, 
and  with  uttering  them,  knowing  them  to  be  forged. 

It  appeared  that  the  prosecutor,  George  Borwick,  was  in  the  habit 
of  selling  certain  powders,  some  called  "Borwick's  baking  powders," 
and  others  "Borwick's  egg  powders." 

These  powders  were  invariably  sold  in  packets,  and  were  wrapped 
up  in  printed  papers. 

The  baking  powders  were  wrapped  in  papers  which  contained  the 
name  of  George  Borwick,  but  they  were  so  wrapped  that  the  name 
was  not  visible  till  the  packets  were  opened. 

It  was  proved  that  the  prisoner  had  endeavored  to  sell  baking 
powders,  but  had  them  returned  to  him  because  they  were  not  Bor- 
wick's powders. 

Subsequently  he  went  to  a  printer,  and,  representing  his  name  to 
be  Borwick,  desired  him  to  print  10,000  labels  as  nearly  as  possible 
like  those  used  by  Borwick,  except  that  the  name  of  Borwick  was  to 
be  omitted  in  the  baking  powders. 

The  labels  were  printed  according  to  his  order,  and  a  considerable 
quantity  of  the  prisoner's  powders  were  subsequently  sold  by  him  as 
Borwick's  powders  wrapped  in  those  labels. 

On  the  part  of  the  prisoner  it  was  objected  that  the  making  or  utter- 
ing such  documents  did  not  constitute  the  offense  charged  in  the  in- 
dictment. 

This  point  I  determined  to  reserve  for  the  consideration  of  the  Court 
of  Criminal  Appeal,  and  I  left  it  to  the  jury  to  find  whether  the  labels 
so  far  resembled  those  used  by  Borwick  as  to  deceive  persons  of  ordi- 
nary observation,  and  to  make  them  believe  them  to  be  Borwick's 
labels,  and  whether  they  were  made  and  uttered  by  him  with  intent 
to  'lrfraud  the  different  parties  by  so  deceiving  them,  directing  them  in 
that  case  to  find  the  prisoner  guilty. 

The  jury  found  him  guilty.1 

Mclntyre,  for  the  prisoner.  This  is  not  a  forgery,  either  at  com- 
mon law  or  within  the  statute.  The  gist  of  the  offense  was  the  passing 
off  for  genuine  baking  powder  that  which  was  not  so;  in  fact,  some- 
thing thai  was  not  so  good.  This  was  nothing  more  than  a  puff.  In 
Reg.  v.  Closs,  27  L.  J.  54,  M.  C,  it  was  held  that  a  person  could  not  be 
indicted  for  forging  or  uttering  the  forged  name  of  a  painter,  by 
ly  putting  it  on  a  spurious  picture  to  pass  it  off  as  the  genuine 

i  Part  of  the  evidence  is  omitted. 


Sec.  1)  THE   INSTRUMENT.  575 

painting  of  the  artist.  This  was  no  more  than  a  printed  label,  and 
only  differs  from  Reg.  v.  Closs  in  that  there  the  name  was  painted 
on  the  picture.  In  the  case  of  Burgess'  sauce  labels  the  Court  of  Chan- 
cery refused  to  restrain  the  son  from  using  labels  with  the  father's 
name  upon  them.  [Pollock,  C.  B.  Suppose  a  man  opened  a  shop 
and  painted  it  so  as  exactly  to  resemble  his  neighbor's;  would  that 
be  forgery?]  No.  The  affixing  this  label  to  the  powder  amounts 
to  no  more  than  saying:  "This  is  Borwick's  powder."  If  the  pris- 
oner had  had  a  license,  he  would  have  had  a  right  to  use  the  labels. 

Huddleston  (Poland  with  him),  for  the  prosecution.  The  jury  have 
found  that  the  labels  were  made  and  uttered  by  the  prisoner  with  in- 
tent to  defraud.  The  definition  of  forgery  at  common  law  is  "the 
fraudulent  making  or  alteration  of  a  writing  to  the  prejudice  of  an- 
other man's  right."  2  Russ.  on  Crimes,  318;  4  Black.  Com.  247; 
Stark.  Crim.  Law,  468;  2  East,  P.  C.  p.  965,  c.  19,  §  49.  And  the 
finding  of  the  jury  brings  this  case  within  that  definition.  [Chan- 
nell,  B.  What  was  a  document  at  common  law  which  could  be  the 
subject  of  a  forgery?  Pollock,  C.  B.  Was  a  book  of  which  another 
man  made  copies?]  It  is  submitted  that  it  was.  Com.  Dig.  "Forgery." 
Letters  may  be  the  subject  of  forgery.  Chit.  Crim.  Law,  1022.  So 
a  diploma  of  the  College  of  Surgeons  may  be.  Reg.  v.  Hodgson,  7 
Cox,  C.  C.  122.  So  also  the  certificate  of  the  examiners  of  the  Trinity 
House.  Reg.  v.  Toshack,  1  Den.  C.  C.  492.  So  a  letter  of  the  char- 
acter of  a  servant  may  be.  Reg.  v.  Sharman,  1  Dears.  C.  C.  285. 
Then  this  label  is  a  certificate  as  to  the  character  of  an  article.  Reg. 
v.  Closs,  R.  v.  Colicott,  R.  &  R.  201,  and  Stark.  Crim.  Law,  479,  were 
also  cited. 

BramwELL,  B.  I  think  that  this  was  not  a  forgery,  even  assuming 
that  the  definition  of  forgery  at  common  law  is  large  enough  to  compre- 
hend this  case.  Forgery  supposes  the  possibility  of  a  genuine  docu- 
ment, and  that  the  false  document  is  not  as  good  as  the  genuine  docu- 
ment, and  that  the  one  is  not  as  efficacious  for  all  purposes  as  the  other. 
In  the  present  case  one  of  these  documents  is  as  good  as  the  other, 
the  one  asserts  what  the  other  does,  the  one  is  as  true  as  the  other,  but 
the  one  is  improperly  used.  But  the  question  now  is  whether  the 
document  itself  is  a  false  document.  It  is  said  that  the  one  is  so  like 
one  used  by  somebody  else  that  it  may  mislead.  That  is  not  material, 
or  whether  one  is  a  little  more  true  or  more  false  than  the  other. 
I  cannot  see  any  false  character  in  the  document.  The  prisoner  may 
have  committed  a  gross  fraud  in  using  the  wrappers  for  that  which 
was  not  the  genuine  powder,  and  may  possibly  be  indicted  for  obtain- 
ing money  by  false  pretenses,  but  I  think  he  cannot  be  convicted  of 
forgery.2 

Channel,  B.,  concurred. 

»  Pollock,  C.  B.,  and  Willes,  J.,  delivered  concurring  opinions. 


■ 

(J 


576  FORGERY.  (Ch.  19 

Byles,  J.     Every   forgery  is  a  counterfeit.     Here  there  was  no 
counterfeit.    The  offense  lies  in  the  use  of  it. 
Conviction  quashed.3 


WALL'S  CASE. 

(Court  for  Crown  Cases  Reserved,  1S00.    2  East,  P.  C.  953.) 

Thos.  Wall  was  convicted  upon  an  indictment  for  forging  and 
knowingly  uttering  a  will  of  land  of  one  John  Skidmore,  deceased, 
attested  by  only  two  witnesses;  and  it  did  not  appear  in  evidence 
what  estate  the  supposed  testator  had  in  the  land  so  devised,  or  of 
what  nature  it  was.  Wherefore  it  might  be  presumed  to  be  freehold, 
and  therefore  the  will  void  and  of  none  effect  by  the  express  enact- 
ment of  the  statute  of  frauds  (St.  29  Car.  II,  c.  3,  §  5)  for  want  of 
the  attestation  of  three  witnesses.  The  judges,  on  conference  in 
Easter  Term,  1800,  held  the  conviction  wrong;  for,  as  it  was  not 
shown  to  be  a  chattel  interest,  it  was  presumed  to  be  a  freehold.* 


REX  v.  TEAGUE. 

(Court  for  Crown  Cases  Reserved,  1802.    Russ.  &  R.  33.) 

The  prisoner  was  tried  before  Mr.  Justice  LeBlanc,  at  the  Hereford 
Summer  Assizes,  in  the  year  1802,  on  an  indictment  charging  him  with 
feloniously,  etc.,  making,  forging,  and  counterfeiting  a  certain  bill 
of  exchange,  as  follows,  viz. : 

"No.  Q.  621.  50/.  Brecon,  24th  June,  1799. 

On    demand,    pay   to   the   bearer    fifty    pounds,    value    received. 
For  Wilkins,  Jeffreys,  Wilkins  and  Williams. 

Messrs.  Mills,  Vaughan  &  Co. 

I 'ankers,  Bristol.  Walter  Jeffreys." 

with  intent  to  defraud  Walter  Wilkins,  Walter  Jeffreys,  Jeffreys  Wil- 
kins, and  William  Williams,  against  the  statute,  etc. 

A  second  count  was  for  uttering  the  same,  knowing  it  to  be  forged. 
There  were  two  other  similar  counts,  stating  the  intent  to  be  to  de- 
fraud Thomas  Powell. 

It  appeared  that  the  bill  was  drawn  and  signed  by  Walter  Jeffreys, 
one  of  the  partners  of  the  house,  for  £10  only,  on  a  sixteen  penny  stamp 

•  See,  :iis<>.  Waterman  v.  People,  67  in.  91  (1873);  Colson  v.  Commonwealth, 
61  s.  W.  46,  22  Kv.  i.:iw  Rep.  1674  (1901).  Of.  Keg.  v.  Toshack,  i  Den. 
402   (1849);     State   v.   Grant,    74    Mo.    83    (1881). 

«  See  accord:  State  v.  Gutrldge,  l  Bay  (S.  C.)  286  (1703);  People  v.  Wilson, 
0  Johns.  (N.  y.i  820  (1810);  State  v.  Smith,  8  lerg.  (Tenn.)  L60  (1835);  People 
v.  Harrison,  8  Barb.  (N.  y.i  560  (1850).  Compare:  Butler  v.  Commonwealth, 
12  Serg.  &  i;  (Pa.)  237,  n  Am.  Dec.  670  (1824);  Thompson  v.  State,  U  Ohio 
St.  354  (1850). 


Sec.  2)        THE   ACT   BY   WHICH    THE    FORGERY    18   COMMITTED.  577 

(then  the  proper  stamp  for  promissory  notes  of  ten  pounds  intended 
to  be  reissued  after  payment).  This  bill  of  exchange  had  been  re- 
issued three  times  by  Wilkins  &  Co.  as  a  £10  bill.  It  appeared  that  the 
bill  had  been  altered  by  changing  £10  into  £50,  in  the  part  of  the 
bill  where  the  sum  is  expressed  in  figures,  as  also  in  the  part  where 
it  is  expressed  in  letters,  and,  so  altered,  had  been  passed  by  the  pris- 
oner to  Thomas  Powell. 

The  jury  found  the  prisoner  guilty  of  uttering  it,  knowing  it  to  be 
forged;  but  the  learned  judge  respited  the  judgment  on  the  objections 
made  by  the  prisoner's  counsel,  viz. : 

Secondly.1  That  the  act  permitting  the  reissuing  of  notes  after  the 
same  shall  have  been  paid  related  only  to  promissory  notes;  but  this 
was  a  bill  of  exchange,  and  could  not  be  legally  reissued  without  a 
fresh  stamp,  and,  having  been  reissued  three  times  before  it  was 
altered,  it  was  not  a  valid  bill  for  £10  at  the  time  it  was  altered  to  £50, 
and  therefore  it  was  not  that  species  of  forgery  which  consisted  in 
the  altering  a  true  and  valid  bill. 

On  the  first  day  of  Michaelmas  term,  1802,  all  the  judges  met  at 
Lord  Ellenborough's  chambers.  On  the  second  objection  all  the 
judges  were  of  opinion  that  although  the  bill  was  not  a  good  and 
valid  bill  for  £10,  having  been  reissued  after  having  been  paid,  and 
being  only  stamped  with  the  proper  stamp  for  a  reissuable  promissory 
note,  yet  that  it  was  the  same  thing  as  forging  or  uttering  a  forged 
bill  with  a  wrong  stamp,  which  has  been  determined  to  be  a  capital 
felony.     They  therefore  held  the  conviction  right.2 


SECTION  2.— THE  ACT  BY  WHICH  THE  FORGERY  IS  COM- 
MITTED. 


REX  v.  LOCKETT. 
(Court  for  Crown  Cases  Reserved,  1772.    2  East,  P.  C.  940.) 

Charles  Lockett  was  convicted  of  knowingly  uttering  a  forged  order 
for  the  payment  of  money  in  these  words:  "Messrs.  Neal,  Fordyce 
&  Down :  Pay  to  William  Hopwood  or  bearer  £16.  10.  6.  Rt.  Vennest" 
— with  intent  to  defraud  John  Scoles. 

The  case  was  that  the  prisoner  applied  to  Scoles,  a  color  man,  and 
agreed  to  purchase  goods  to  the  amount  of  £10.  0.  6,  which  he  was  to 
send  for,  and  he  took  away  with  him  a  little  Prussian  blue.  He  came 
again,  pretending  to  be  in  a  hurry,  and  presented  this  note,  which  he 

i  So  much  of  the  case  as  relates  to  the  first  objection  is  omitted. 
2  See,  also.  State  v.  Fitzsinmions.  30  Mo.  236  (1SG0) ;    State  v.  Johnson,  2Q 
Iowa,  407.  96  Am.  Dec.  15S  (18G8) ;    State  v.  Coyle.  41  Wis.  2G7  (1S7G). 
Mik.Cr.L.— 37 


578  FORGERY.  (Ch.  19 

said  was  a  good  one,  and  Scoles  gave  him  £6.  10s.,  being  the  differ- 
ence. No  such  person  as  Rt.  Vennest  kept  cash  with  Messrs.  Neal  & 
Co.,  nor  did  it  appear  that  there  was  any  such  man  existing.  The 
question  submitted  to  the  judges  was  whether  this  were  an  order  with- 
in the  statute,  being  in  the  name  of  a  fictitious  person?  the  doubt  aris- 
ing in  what  is  said  in  Mitchell's  Case.  The  judges,  after  very  long 
consideration,  at  last  agreed,  in  Trinity  Term,  1774,  that  this  was 
forgery.  They  thought  it  quite  immaterial  whether  such  a  man  as 
Vennest  existed  or  not,  or,  if  he  did,  whether  he  had  kept  cash  at 
the  banking  house  of  Messrs.  Neal  &  Co.  It  was  sufficient  that  the 
order  assumed  those  facts,  and  imported  a  right  on  the  part  of  the 
drawer  to  direct  such  a  transfer  of  his  property. 


COMMONWEALTH  v.  BALDWIN. 

(Supreme  Judicial  Court  of  Massachusetts,  1858.     11  Gray,  197,  71  Am.  Dec. 

703.) 

Thomas,  J.1  This  is  an  indictment  for  the  forgery  of  a  promissory 
note.  The  indictment  alleges  that  the  defendant,  at  Worcester,  in  this 
county,  "feloniously  did  falsely  make,  forge,  and  counterfeit  a  certain 
false,  forged,  and  counterfeit  promissory  note,  which  false,  forged, 
and  counterfeit  promissory  note  is  of  the  following  tenor,  that  is  to 
say: 
"  '$457.88.  Worcester,  Aug.  21,  1856. 

"  'Four  months  after  date  we  promise  to  pay  to  the  order  of  Russell 
Phelps  four  hundred  fifty-seven  dollars  88/ioo,  payable  at  Exchange 
Bank,  Boston,  value  received. 

"  'Schouler,  Baldwin  &  Co.' 
with  intent  thereby  then  and  there  to  injure  and  defraud  said  Russell 
Phelps." 

The  circumstances  under  which  the  note  was  given  are  thus  stated 
in  the  bill  of  exceptions:  Russell  Phelps  testified  that  the  note  was 
executed  and  delivered  by  the  defendant  to  him  at  the  Bay  State 
House,  in  Worcester,  on  the  21st  of  August,  185G,  for  a  note  of  equal 
amount,  which  he  held,  signed  by  the  defendant  in  his  individual  name, 
and  which  was  overdue,  and  that  in  reply  to  the  inquiry  who  were  the 
members  of  the  firm  of  Schouler,  Baldwin  &  Co.  the  defendant  said, 
"Henry  W.  Baldwin  and  William  Schouler,  of  Columbus."  He  fur- 
ther  -;iid  that  no  person  was  represented  by  the  words  "&  Co."  It 
appeared  in  evidence  that  the  note  signed  Schouler,  Baldwin  &  Co. 
was  never  negotiated  by  Russell  I 'helps.  The  government  offered 
evidence  which  tended  to  prove  either  that  then-  never  had  been  any 
partnership  between  Schouler  and  Baldwin,  the  defendant,  or,  if  there 

i  Part  of  tii''  opinion  is  omitted. 


Sec.  2)        THE   ACT   BY   WHICH   THE    FORGERY    IS   COMMITTED.  579 

ever  had  been  a  partnership,  that  it  was  dissolved  in  the  month  of 
July,  1856. 

The  question  raised  at  the  trial  and  discussed  here  is  whether  the 
execution  and  delivery  of  the  note,  under  the  facts  stated,  and  with 
intent  to  defraud,  was  a  forgery. 

It  would  be  difficult,  perhaps,  by  a  single  definition  of  the  crime  of 
forgery,  to  include  all  possible  cases.  Forgery,  speaking  in  general 
terms,  is  the  false  making  or  material  alteration  of  or  addition  to  a 
written  instrument  for  the  purpose  of  deceit  and  fraud.  It  may  be 
the  making  of  a  false  writing  purporting  to  be  that  of  another.  It  may 
be  the  alteration  in  some  material  particular  of  a  genuine  instrument 
by  a  change  of  its  words  or  figures.  It  may  be  the  addition  of  some 
material  provision  to  an  instrument  otherwise  genuine.  It  may  be  the 
appending  of  a  genuine  signature  of  another  to  an  instrument  for 
which  it  was  not  intended.  The  false  writing,  alleged  to  have  been 
made,  may  purport  to  be  the  instrument  of  a  person  or  firm  existing, 
or  of  a  fictitious  person  or  firm.  It  may  be  even  in  the  name  of  the 
prisoner,  if  it  purports  to  be,  and  is  desired  to  be  received  as,  the  in- 
strument of  a  third  person  having  the  same  name. 

As  a  general  rule,  however,  to  constitute  forgery,  the  writing 
falsely  made  must  purport  to  be  the  writing  of  another  party  than 
the  person  making  it.  The  mere  false  statement  or  implication  of 
a  fact,  not  having  reference  to  the  person  by  whom  the  instrument 
is  executed,  will  not  constitute  the  crime. 

An  exception  is  stated  to  this  last  rule  by  Coke,  in  3  Inst.  169, 
where  A.  made  a  feoffment  to  B.  of  certain  land,  and  afterwards 
made  a  feoffment  to  C.  of  the  same  land,  with  an  antedate  before 
the  feoffment  to  B.  This  was  certainly  making  a  false  instrument 
in  one's  own  name,  making  one's  own  act  to  appear  to  have  been 
done  at  a  time  when  it  was  not  in  fact  done.  We  fail  to  under- 
stand on  what  principle  this  case  can  rest.  If  the  instrument  had 
been  executed  in  the  presence  of  the  feoffee  and  antedated  in  his 
presence,  it  clearly  could  not  have  been  deemed  forgery.  Beyond 
this,  as  the  feoffment  took  effect,  not  by  the  charter  of  feoffment, 
but  by  the  livery  of  seisin — the  entry  of  the  feoffer  upon  the  land 
with  the  charter  and  the  delivery  of  the  twig  or  clod  in  the  name 
of  the  seisin  of  all  the  land  contained  in  the  deed — it  is  not  easy  to 
see  how  the  date  could  be  material. 

The  case  of  Mead  v.  Young,  4  T.  R.  28,  is  cited  as  another  ex- 
ception to  the  rule.  A  bill  of  exchange  payable  to  A.  came  into  the 
hands  of  a  person  not  the  payee,  but  having  the  same  name  with  A. 
This  person  indorsed  it.  In  an  action  by  the  indorsee  against  the 
acceptor,  the  question  arose  whether  it  was  competent  for  the  de- 
fendant to  show  that  the  person  indorsing  the  same  was  not  the 
real  payee.  It  was  held  competent,  on  the  ground  that  the  indorse- 
ment was  a  forgery,  and  that  no  title  to  the  note  could  be  derived 
through  a  forgery.     In  this  case  of  Mead  v.  Young,  the  party  as- 


580  FORGERY.  (Ch.  19 

sumed  to  use  the  name  and  power  of  the  payee.  The  indorsement 
purported  to  be  used  was  intended  to  be  taken  as  that  of  another 
person,  the  real  payee. 

The  writing  alleged  to  be  forged  in  the  case  at  bar  was  the  hand- 
writing of  the  defendant,  known  to  be  such,  and  intended  to  be  re- 
ceived as  such.  It  binds  the  defendant.  Its  falsity  consists  in  the 
implication  that  he  was  a  partner  of  Schouler  and  authorized  to 
bind  him  by  his  act.  This,  though  a  fraud,  is  not,  we  think,  a  for- 
gery. 

Suppose  the  defendant  had  said  in  terms,  "I  have  authority  to  sign 
Schouler's  name,"  and  then  had  signed  it  in  the  presence  of  the 
promisee.  He  would  have  obtained  the  discharge  of  the  former 
note  by  a  false  pretense,  a  pretense  that  he  had  authority  to  bind 
Schouler.  "It  is  not,"  says  Sergeant  Hawkins,  "the  bare  writing 
of  an  instrument  in  another's  name  without  his  privity,  but  the  giv- 
ing it  a  false  appearance  of  having  been  executed  by  him,  which 
makes  a  man  guilty  of  forgery."    1  Hawk.  c.  70,  §  5. 

If  the  defendant  had  written  upon  the  note,  "William  Schouler, 
by  his  agent,  Henry  W.  Baldwin,"  the  act  plainly  would  not  have 
been  forgery.  The  party  taking  the  note  knows  it  is  not  the  per- 
sonal act  of  Schouler.  He  does  not  rely  upon  his  signature.  He 
is  not  deceived  by  the  semblance  of  his  signature.  He  relies  solely 
upon  the  averred  agency  and  authority  of  the  defendant  to  bind 
Schouler.  So,  in  the  case  before  us,  the  note  was  executed  in  the 
presence  of  the  promisee.  He  knew  it  was  not  Schouler's  signa- 
ture. He  relied  upon  the  defendant's  statement  of  his  authority  to 
bind  him  as  partner  in  the  firm  of  Schouler,  Baldwin  &  Co.;  or, 
if  the  partnership  had  in  fact  before  existed,  but  was  then  dissolved, 
effect  of  the  defendant's  act  was  a  false  representation  of  its 
continued  existence. 

In  the  case  of  Regina  v.  White,  1  Denison,  208,  the  prisoner 
indorsed  a  bill  of  exchange,  "Per  procuration,  Thomas  Tomlinson, 
Emanuel  White."  He  had  no  authority  to  make  the  indorsement, 
but  the  twelve  judges  held  unanimously  that  the  act  was  no  forgery. 

The  result  is  that  the  exceptions  must  be  sustained  and  a  new  trial 
ordered  in  the  common  pleas.  It  will  be  observed,  however,  that  the 
grounds  on  which  the  exceptions  are  sustained  seem  necessarily  to 
di  pose  of  the  cause. 

Exceptions  sustained. 


Sec.  2)        THE   ACT   BY    WHICH   THE    FORGERY    IS    COMMITTED.  581 

WRIGHT'S  CASE. 

(Lancaster  Assizes,  1828.    1  Lew.  135.) 

Prisoners  were  indicted  for  uttering  a  forged  banker's  check.  It 
appeared  that  a  person  named  Townsend  was  in  the  habit  of  sign- 
ing blank  checks  and  leaving  them  with  his  clerk  when  business 
called  him  away  from  home.  One  of  these  checks  fell  into  the 
hands  of  the  prisoners,  who  filled  up  the  blank  with  the  words 
"one  hundred  pounds,"  and  dated  it. 

Coltman,  for  the  prisoner,  objected  that,  the  signature  being  genu- 
ine, it  could  not  be  said  that  the  prisoner  had  uttered  a  forged  in- 
strument. 

Bayley,  J.  By  filling  in  the  body,  and  dating  it,  he  made  it  a 
perfect   instrument,   which  it   previously   was   not.1 


COMMONWEALTH  v.   SANKEY. 

(Supreme  Court  of  Pennsylvania,  1833.    22  Pa.  390,  GO  Am.  Dec.  91.) 

Black,  C.  J.2  The  defendant  wrote  a  note  payable  to  himself, 
for  $141,  and  got  an  illiterate  man  to  sign  it,  by  falsely  and  fraud- 
ulently pretending  that  it  was  for  $41  only.  On  a  special  verdict 
finding  these  facts,  the  court  gave  judgment  in  favor  of  the  accused. 

The  act  was  a  forgery  according  to  all  the  text-writers  on  crim- 
inal law,  from  Coke  to  Wharton.  But  their  doctrine  is  not  sus- 
tained by  the  ancient  English  cases,  and  is  opposed  by  the  modern 
ones.  Only  three  American  decisions  were  cited  on  the  argument ; 
and  we  take  it  for  granted  that  there  are  no  others  on  the  point. 
Two  of  these,  Putnam  v.  Sullivan,  4  Mass.  45,  3  Am.  Dec.  206, 
Hill  v.  State,  1  Yerg.  (Tenn.)  76,  24  Am.  Dec.  441,  are  wholly 
with  the  defendant,  and  the  other,  State  v.  Shurtliff,  18  Me.  371, 
supports  the  argument  of  the  commonwealth's  counsel.  The  weight 
of  the  judicial  authorities  is  in  favor  of  the  opinion  that  this  is  no 
forgery.  We  think  that  the  arguments  drawn  from  principle,  and 
the  reason  of  the  thing,  preponderate  on  the  same  side.  It  must  be 
admitted  that,  in  morals,  such  an  imposture  as  this  stands  no  better 
than  the  making  of  a  false  paper.  But  even  a  knave  must  not  be 
punished  for  one  offense  because  he  has  been  guilty  of  another. 
Forgery  is  the  fraudulent  making  or  altering  of  a  writing  to  the 
prejudice  of  another's  right.  The  defendant  was  guilty  of  the  fraud, 
but  not  of  the  making.  The  paper  was  made  by  the  other  person 
himself,  in  prejudice  of  his  own  right.  To  complete  the  offense, 
according  to  the  definition  it  requires  a  fraudulent  intent  and  a  mak- 

i  Part  of  the  case,  dealing  with  another  question,  is  omitted. 
2  The  opinion  only  is  printed. 


582  FORGERY.  (Ch.  19 

ing  both.  The  latter  is  innocent  without  the  former,  and  the  for- 
mer, if  carried  into  effect  without  the  latter,  is  merely  a  cheat.  If 
every  trick,  or  false  pretense,  or  fraudulent  act  by  which  a  person 
is  induced  to  put  his  name  to  a  paper  which  he  would  not  otherwise 
have  signed,  is  to  be  called  a  forgery,  where  shall  we  stop,  and  what 
shall  be  the  rule?  Is  it  forgery  to  take  a  note  for  a  debt  known  not 
to  be  due;  or  to  procure  a  deed  for  valuable  land  by  fraudulently 
representing  to  the  ignorant  owner  that  it  is  worthless;  or  to  get 
a  legacy  inserted  in  a  will  by  imposing  on  a  weak  man  in  his  ill- 
ness? All  these  would  be  frauds — frauds  perpetrated  for  the  pur- 
pose of  getting  papers  signed — as  much  as  that  which  was  commit- 
ted in  this  case.    But  no  one  thinks  they  are  forgeries. 

For  these  reasons,  and  the  reasons  given  in  the  court  below,  which 
we  fully  adopt,  the  judgment  is  to  be  affirmed.2 


SECTION  3.— THE  INTENT. 


REX  v.  SHEPPARD. 
(Court  for  Crown  Cases  Reserved,  1810.    Russ.  &  R.  169.) 

The  prisoner  was  tried  before  Mr.  Justice  Heath,  at  the  Old 
Bailey  September  Sessions,  in  the  year  1809,  on  an  indictment  con- 
sisting of  four  counts. 

The  first  count  charged  the  prisoner  with  forging  a  receipt  for 
£19.  16s.  6d.,  purporting  to  be  signed  by  W.  S.  West,  for  certain 
stock  therein  mentioned,  with  intent  to  defraud  the  governors  and 
company  of  the  Bank  of  England.  The  second  count  was  for  ut- 
tering the  same  knowing  it  to  be  forged,  with  the  like  intent.  The 
third  and  fourth  counts  varied  from  the  first  and  second  in  charg- 
ing the  intent  to  have  been  to  defraud  Richard  Mordey. 

It  appeared  in  evidence  at  the  trial,  that  Richard  Mordey  gave 
£20  to  his  brother  Thomas  Mordey  in  the  month  of  January,  1809, 
to  buy  stock  in  the  5  per  cent.  navy. 

In  February  following  Thomas  Mordey  gave  the  £20  to  the  pris- 
oner for  the  purchase  of  the  said  stock,  on  the  prisoner's  delivering 
to  him  the  receipt  stated  in  the  indictment. 

The  prisoner.  1><  imined  at  the  bank,  confessed  that  the  re- 

ceipl   was  a  forgery,  that  there  was  no  such  person  as  W.   S.  West, 

signature  appeared  subscribed  to  the  receipt,  and  that  he,  be- 

■  Accord:  Bill  v.  State,  1  Yerg.  (Tena.)  76,  24  am.  Dec.  in  (1824);  Reg. 
v.  Chadwlck,  'J  Moo.  ft  K.  545  (1844).  Contra:  State  v.  Shurtllfl,  18  Me. 
B68  (1841). 


Sec.  3)  THE  INTENT.  583 

ing  pressed  for  money  forged  that  name,  but  had  no  intention  of 
defrauding  Richard  Mordey. 

Richard  Mordey  and  Thomas  Mordey  swore  they  believed  that 
the  prisoner  had  no  such  intent. 

On  examining  the  bank  books,  no  transaction  corresponding  with 
this  could  be  found. 

The  learned  judge  told  the  jury  that  the  prisoner  was  entitled  to 
an  acquittal  on  the  first  and  second  counts,  because  the  receipt  in 
question  could  not  operate  in  fraud  of  the  governor  and  company 
of  the  bank. 

That  as  to  the  third  and  fourth  counts,  although  the  Mordeys 
swore  that  they  did  not  believe  the  forgery  to  have  been  committed 
with  an  intent  to  defraud  Richard  Mordey,  yet  as  it  was  the  neces- 
sary effect  and  consequence  of  the  forgery,  if  the  prisoner  could 
not  repay  the  money,  it  was  sufficient  evidence  of  the  intent  for  them 
to  convict  the  prisoner. 

The  jury  acquitted  the  prisoner  on  the  first  and  second  counts, 
and  found  him  guilty  on  the  third  and  fourth  counts;  and  the  learn- 
ed judge  reserved  this  case  for  the  opinion  of  the  judges,  to  deter- 
mine whether  this  direction  to  the  jury  was  right  and  proper. 

In  Easter  Term,  31st  of  May,  1810,  all  the  judges  were  present, 
and  they  were  all  of  opinion  that  the  conviction  was  right ;  that  the 
immediate  effect  of  the  act  was  the  defrauding  of  Richard  Mordey 
of  his  money. 


REGINA  v.  HODGSON. 
(Court  for  Crown  Cases  Reserved,  1856.    36  Eng.  Law  &  Eq.  626.) 

The  following  case  was  reserved  and  stated  for  the  consideration 
and  decision  of  the  Court  of  Criminal  Appeal  by  Bramwell,  B.,  at 
the  Staffordshire  Spring  Assizes,  1856: 

Henry  Hodgson  was  indicted  at  common  law  for  forging  and 
uttering  a  diploma  of  the  College  of  Surgeons.  The  indictment  was 
in  the  common  form. 

The  College  of  Surgeons  has  no  power  of  conferring  any  degree 
or  qualification,  but  before  admitting  persons  to  its  membership,  it 
examines  them  as  to  their  surgical  knowledge,  and  if  satisfied  there- 
with admits  them,  and  issues  a  document,  called  a  diploma,  which 
states  the  membership.  The  prisoner  had  forged  one  of  these  di- 
plomas. He  procured  one  actually  issued  by  the  College  of  Sur- 
geons, erased  the  name  of  the  person  mentioned  in  it,  and  substi- 
tuted his  own,  changed  the  date,  and  made  other  alterations  to 
make  it  appear  to  be  a  document  issued  by  the  college  to  him.  He 
hung  it  up  in  his  sitting  room,  and,  on  being  asked  by  two  other 
medical  practitioners  whether  he  was  qualified,  he  said  he  was, 
and  produced  this  document  to  prove  his  assertion. 


3S4.  FORGERY.  (Ch.  19 

When  a  candidate  for  an  appointment  as  vaccinating  officer,  he 
stated  he  had  his  qualification,  and  would  show  it  if  the  person  in- 
quiring (the  clerk  of  the  guardians,  who  were  to  appoint  to  the 
office)  would  go  to  his  (the  prisoner's)  gig.  He  did  not,  however, 
then  produce  or  show  it. 

The  prisoner  was  found  guilty,  the  facts  to  be  taken  to  be  that 
he  forged  the  document  in  question,  with  the  general  intent  to  in- 
duce a  belief  that  the  document  was  genuine,  and  that  he  was  a 
member  of  the  College  of  Surgeons,  and  that  he  showed  it  to  two 
persons,  with  the  particular  intent  to  induce  such  belief  in  those 
persons,  but  that  he  had  no  intent  in  forging,  or  in  the  uttering 
and  publishing  (assuming  there  was  one),  to  commit  any  particu- 
lar fraud  or  specific  wrong  to  any  individual.1 

Jervis,  C.  J.  I  am  of  opinion  that  this  conviction  is  wrong. 
The  recent  statute  for  further  improving  the  administration  of  crim- 
inal justice  (St.  14  &  15  Vict.  c.  100)  alters  and  affects  the  forms 
of  pleadings  only,  and  does  not  alter  the  character  of  the  offense 
charged.  The  law  as  to  that  is  the  same  as  if  the  statute  had  not 
been  passed.  This  is  an  indictment  for  forgery  at  common  law. 
I  will  not  stop  to  consider  whether  this  is  a  document  of  a  public 
nature  or  not,  though  I  am  disposed  to  think  that  it  is  not  a  public 
document;  but,  whether  it  is  or  not,  in  order  to  make  out  the 
offense  there  must  have  been,  at  the  time  of  the  instrument  being 
forged,  an  intention  to  defraud  some  person.  Here  there  was  no 
such  intent  at  that  time,  and  there  was  no  uttering  at  the  time  when 
it  is  said  there  was  an  intention  to  defraud.2 

Conviction  quashed.3 

i  Part  of  this  case  is  omitted. 

2  Wlghtman,  J.,  and  Bramwell,  B.,  delivered  concurring  opinions,  and 
CressweU  and  Erie,  JJ.,  concurred. 

s  Compare  Reg.  v.  Tosnack.  1  Den.  C.  C.  492  (1849). 


LIBEL.  585 

CHAPTER  XX. 
LIBEL. 


THE  CASE  DE  LIBELLIS  FAMOSIS. 
(Star  Chamber,  1605.    5  Rep.  125.) 

In  the  case  of  L.  P.  in  the  Star  Chamber  this  term  against  whom 
the  Attorney  General  proceeded  ore  tenus  on  his  own  confession, 
for  composing  and  publishing  an  infamous  libel  in  verse,  by  which 
John,  Archbishop  of  Canterbury  (who  was  a  prelate  of  singular 
piety,  gravity  and  learning,  now  dead),  by  descriptions  and  circum- 
locutions, and  not  in  express  terms,  and  Richard,  Bishop  of  Canter- 
bury, who  now  is,  were  traduced  and  scandalized,  in  which  these 
points  were  resolved. 

1.  Every  libel  (which  is  called  famosus  libellus,  seu  infamatoria 
scriptura)  is  made  either  against  a  private  man,  or  against  a  mag- 
istrate or  public  person.  If  it  be  against  a  private  man  it  deserves 
a  severe  punishment,  for  although  the  libel  be  made  against  one, 
yet  it  incites  all  those  of  the  same  family,  kindred,  or  society  to  re- 
venge, and  so  tends  per  consequens  to  quarrels  and  breaches  of  the 
peace,  and  may  be  the  cause  of  shedding  of  blood,  and  of  great 
inconvenience.  If  it  be  against  a  magistrate  or  other  public  per- 
son, it  is  a  greater  offense;  for  it  concerns  not  only  the  breach  of 
peace,  but  also  the  scandal  of  government.1 

2.  Although  the  private  man  or  magistrate  be  dead  at  the  time 
of  the  making  of  the  libel,  yet  it  is  punishable;  for  in  the  one  case 
it  stirs  up  others  of  the  same  family,  blood  or  society  to  revenge,  and  to 
break  the  peace,  and  in  the  other  the  libeler  traduces  and  slanders 
the  state  and  government,  which  dies  not. 

It  it  not  material  whether  the  libel  be  true,  or  whether  the  party 
against  whom  it  is  made  be  of  good  or  ill  fame.2  Every  infamous 
libel,  aut  est  in  scriptis,  aut  sine  scriptis.  A  scandalous  libel  in 
scriptis  is,  when  an  epigram,  rhime  or  other  writing  is  composed 
or  published  to  the  scandal  or  contumely  of  another,  by  which  his 
fame  and  dignity  may  be  prejudiced.  And  such  libel  may  be  pub- 
lished:    1.  Verbis  aut  cantilenis,  as  where  it  is  maliciously  repeat- 

i  Part  of  this  case  is  omitted. 

2  St.  6  &  7  Vict.  c.  96,  §  6,  allows  the  truth  of  the  alleged  libel  to  be 
given  in  evidence  as  a  complete  defense,  if  it  appear  that  the  publication 
was  made  with  proper  motives  and  for  justifiable  ends.  Similar  statutes 
exist  in  our  states.  See  Commonwealth  v.  Snelling,  15  Pick.  (Mass.)  337  (1S34) ; 
State  v.  White,  29  N.  C.  180  (1847). 


5S6  libel.  (Ch.  20 

ed  or  sung  in  the  presence  of  others.*  2.  Traditione,  when  the 
libel,  or  any  copy  of  it  is  delivered  over  to  scandalize  the  party. 
Famosus  libellus  sine  scriptis  may  be:  1.  Picturis,  as  to  paint  the 
party  in  any  shameful  and  ignominious  manner.  2.  Signis,  as  to 
fix  a  gallows,  or  other  reproachful  and  ignominious  signs  at  the 
party's  door  or  elsewhere.  And  there  are  certain  marks  by  which 
a  libeler  may  be  known;  quia  tria  sequuntur  defamatorem  famosum: 
1.  Pravitatis  incrementum,  increase  of  lewdness.  2.  Bursas  decre- 
mentum,  decrease  of  money,  and  beggary.  3.  Conscientiae  detri- 
mentum,  shipwreck  of  conscience. 


GILES  v.  STATE. 
(Supreme  Court  of  Georgia,  1849.    6  Ga.  276.) 

Lumpkin,  J.,  delivering  the  opinion.* 

1.  Did  the  indictment  contain  a  sufficient  averment  of  the  pub- 
lication of  the  libel?  It  charges  that  David  Giles,  the  defendant, 
on  the  6th  day  of  July,  1847,  did  maliciously  and  falsely  "utter 
and  publish — that  is  to  say,  did  then  and  there  write,  and  fasten  upon 
the  side  of  a  tree  in  a  public  place,  where  it  could  be  there  read — 
the  following  malicious  defamation,  in  writing,  of  and  concerning 
one  William  Thompson  (the  prosecutor)  and  others,"  etc.  It  is  ob- 
jected that  it  should  have  been  alleged  that  the  libel  was  read.  Was 
this  necessary?  If  so,  then  the  fact  that  it  was  read  should  have 
been  proven  also.  We  are  of  opinion  that  neither  was  requisite  to 
■    constitute  the  offense. 

Actual  communication  of  the  contents  of  a  libel,  as  by  singing 
or  reading,  is  one  mode  of  publication ;  but  it  is  neither  the  only 
nor  the  usual  mode.  The  common  method  is  by  the  posting  up  of 
the  paper,  written  or  printed,  or  its  delivery,  and  no  question  is  ever 
asked  as  to  whether  it  was  read  or  not.  We  say  of  an  author  that 
he  has  published  a  book,  when  he  has  given  its  contents  to  the 
world;  and  we  speak  of  the  publication  of  a  will,  without  mean- 
ing to  denote  that  the  contents  of  the  instrument  have  been  actu- 
ally communicated.  So  it  is  with  a  libel.  Publication,  says  Best, 
J.,  in  the  King  v.  Sir  Francis  Burdett,  is  nothing  more  than  doing 
the  last  act  for  the  accomplishment  of  the  mischief  intended  by  it.  The 
moment  a  man  delivers  a  libel  from  his  hands,  his  control  over  it 
is  pone.  lie  has  shot  his  arrow  and  it  does  not  depend  upon  him 
whether  it  hits  the  mark  or  not.  There  is  an  end  of  the  locus  peni- 
tentiae,  his  offense   is  complete,   all  that  depends   upon   him   is  con- 


»  "if  n  man  Insinuates  :i  fact  in  asking  n  question,  meaning  thereby  to  assert 

It,   it    is  tin-  same  thing  as   If  lie  asserted   it  In  terms."     Alilerson,   R.,  in  Keg. 

v  Gathereole,  2  Lewln,  266  (1888). 

♦  Only  so  mueli  of  the  opinion  as  relates  to  publication  Is  printed. 


LIBEL.  587 

summated,  and  from  that  moment,  upon  every  principle  of  com- 
mon sense,  he  is  liable  to  be  called  upon  to  answer  for  his  act. 

So,  then,  the  mere  delivering  over  or  parting-  with  the  libel  is  a 
publication.  There  need  be  no  averment  or  proof  of  the  actual  com- 
munication of  the  contents  of  the  paper.  Lord  Coke  says,  a  libel 
may  be  published  traditione,  by  delivery  (5  Reports,  12G,  a)  ;  and 
this  definition  is  adopted  by  Chief  Baron  Comyns,  in  his  Digest,  tit. 
"Publications,"  b,  1.  If  a  letter  containing  a  libel  is  sent  sealed  to 
another,  or  to  the  party  himself  against  whom  it  is  made  2  or  is  ad- 
dressed through  the  post  office,  it  is  a  sufficient  publication.  1 
Saund.   Rep.  132,  notes. 

If  these  propositions  be  tenable,  and  I  doubt  not  they  are  law, 
then  the  case  before  us  is  free  from  doubt.  I  would  only  add,  upon 
this  branch  of  the  case,  that  Chief  Justice  De  Grey,  in  delivering 
the  opinion  of  the  court  in  Baldwin  v.  Elphinston,  2  W.  Bl.  1037, 
says  there  are  in  Rastall's  Entr.  tit.  "Action  sur  le  Case,"  13  a, 
two  instances  of  constructive  publications,  by  delivering  letters  to 
A.  and  B.,  and  by  fixing  them  on  the  door  of  St.  Paul's  Church. 

The  judgment  of  the  court  below  is  affirmed. 


COMMONWEALTH  v.  BLANDING. 
(Supreme  Judicial  Court  of  Massachusetts,  1825.    3  Pick.  304,  15  Am.  Dec.  214.) 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.8 

As  to  that  part  of  the  instructions  of  the  judge  which  states  that 
the  malicious  intent  charged  in  the  indictment  (there  being  no  evi- 
dence admitted  to  prove  the  truth  of  the  facts  alleged)  was  an  in- 
ference of  law,  this  is  certainly  the  common-law  doctrine,  and  it 
never  has  been  repealed  by  any  statute  of  this  commonwealth,  nor 
overruled  by  any  decision  of  this  court. 

The  propagator  of  written  or  printed  tales  to  the  essential  prej- 
udice of  any  one  in  his  estate  or  reputation  is  a  public  offender, 
and  is  not  allowed  to  excuse  himself  by  the  additional  wrong  of 
proving  in  a  court  of  justice,  in  a  collateral  way,  the  facts  which  he 
has  unwarrantably  promulgated. 

And  yet  there  are  some  exceptions  to  this  general  rule,  recogniz- 
ed by  the  common  law,  and  others  which  are  rendered  necessary 
by  the  principles  of  our  government. 

2  Accord:  Clutterbuck  v.  Chaffers,  1  Stark.  471  (1816);  State  v.  Avery, 
7  Conn.  266.  18  Am.  Dec.  105  (1828) ;    Reg.  v.  Brooke,  7  Cox.  C,  C.  251  (1857). 

When  the  libelous  matter  is  sent  to  the  prosecutor  himself,  the  gist 
of  the  offense  is  the  tendency  to  a  breach  of  the  peace.  The  intent  thus  to 
cause  a  breach  of  the  peace  need  not  be  averred  in  the  indictment,  Reg.  v. 
Brooke,  supra ;  but  if  the  intent  alleged  is  to  injure,  prejudice,  or  aggrieve 
the  prosecutor  in  his  business,  it  is  not  sustained  by  proof  that  the  libel 
was  sent  to  the  prosecutor,  Rex  v.  Wegener,  2  Stark.  245  (1817). 

s  Portions  of  the  opinion  are  omitted. 


588  libel.  (Ch.  20 

These  exceptions  are  all  founded  in  a  regard  to  certain  public 
interests,  which  are  of  more  importance  than  the  character  or  tran- 
quillity of  any  individual.  All  proceedings  in  legislative  assemblies, 
whether  by  speech,  written  documents,  or  otherwise,  are  protected 
from  scrutiny  elsewhere  than  in  those  bodies  themselves,  because 
it  is  essential  to  the  maintenance  of  public  liberty  that  in  such  as- 
semblies the  tongue  and  the  press  should  be  wholly  unshackled.  So 
proceedings  in  courts  of  justice,  in  which  the  reputation  of  individ- 
uals may  be  involved,  are  to  be  free  from  future  animadversions, 
because  the  investigation  of  right  demands  the  utmost  latitude  of 
inquiry,  and  men  ought  not  to  be  deterred  from  prosecuting  or  de- 
fending there  by  fear  of  punishment  or  damages.  Yet  in  these 
instances,  if  this  necessary  indulgence  is  abused  for  malicious  pur- 
poses, a  pretense  only  being  made  of  the  forms  of  legislative  or 
judicial  process,  the  party  so  conducting  himself  is  amenable  to  the 
law.  The  right,  also,  of  complaining  to  any  public  constituted  body 
of  the  malversation  or  oppressive  conduct  of  any  of  its  officers  or 
agents,  with  a  view  to  redress  for  actual  wrong  or  the  removal  of 
an  unfaithful  officer,  may  be  justified,  because  the  case  will  show 
that  the  proceeding  does  not  arise  from  malicious  motives,  or,  if  it 
does,  because  the  common  interest  requires  that  such  representa- 
tions should  be  free.  And  there  are  cases  of  mere  private  import, 
such  as  an  honest,  though  mistaken,  character  of  a  servant,  which. 
when  requested  by  any  one  having  an  interest,  the  law  considers 
innocent.  These  cases  are  all  provided  for  by  the  common  law, 
and  they  go  far  to  render  harmless  that  much  decried  rule  that  the 
truth  is  no  defense  in  a  prosecution  for  libel.  Rex  v.  Wright,  8  T. 
R.  293 ;  Rex  v.  Creevey,  1  M.  &  S.  273 ;  Lake  v.  King,  1  Saund. 
131;  Astley  v.  Younge',  2  Burr.  807;  Rogers  v.  Clifton,  3  B.  & 
P.  587;  Esp.  Dig.  (3d  Ed.)  505;  Thorn  v.  Blanchard,  5  Johns. 
(N.  Y.)  508;  Rex  v.  Fisher,  2  Campb.  563;  Starkie  on  Slander, 
c.  11. 

But  there  are  certain  other  cases,  not  yet  distinctly  adjudicated 
upon,  where  the  truth  of  charges  is  a  legitimate  ground  of  defense, 
by  clear  inference  from  principles  recognized  by  the  common  law 
and  our  own  tribunals. 

In  Commonwealth  v.  Clap,  4  Mass.  1G3,  3  Am.  Dec.  212,  it  is 
1  "that  a  man  may  apply  by  complaint  to  the  Legislature  to 
remove  an  unworthy  officer,  and  if  the  complaint  be  true,  and  made 
with  the  honest  intention  of  giving  useful  information,  and  not 
maliciously,  or  with  intent  to  defame,  the  complaint  will  not  be  a 
libel." 

This  is  put  for  illustration  of  the  principle,  not  to  exhibit  the  only 
in  i.mce  in  which  it  is  to  be  applied.  A  complaint  to  the  executive 
against  an  officer  holding  his  place  at  its  pleasure,  to  a  court  against 
an  officer  whom  they  have  the  power  to  dismiss,  to  any  body  of 
men    having   power   over   its    officers,    the    subject    of    the   complaint 


LIBEL.  589 

being  of  a  public  nature,  or  the  person  complaining  having  a  partic- 
ular interest  in  it,  falls  within  the  same  principle. 

Thus,  if  a  minister  of  the  gospel  should  be  guilty  of  gross  im- 
moralities, and  one  of  his  parish  should  complain  to  the  church  in 
order  that  an  inquiry  might  be  instituted,  or  if  a  candidate  for  the 
ministry  should  from  vicious  habits  be  unfit  for  the  station  he  seeks, 
since  all  are  interested  in  the  purity  of  the  ministerial  character, 
information  to  those  whose  duty  it  is  to  determine  his  qualifications 
would  not  be  libelous,  if  communicated  in  a  spirit  of  truth  and 
candor.  Various  other  cases  might  be  put,  in  which,  if  it  appeared 
that  the  purpose  was  sincere  and  upright  and  wholly  free  from 
malice,  the  truth  of  the  facts  stated  would  be  a  good  defense.  But 
in  all  such  cases  the  information  is  to  be  given  to  those  who  have 
a  right  to  act  upon  it,  and  whose  interest  and  duty  are  concerned 
in  it ;  for  a  promiscuous  promulgation  of  the  same  facts  would  of 
itself  be  the  strongest  evidence  of  malice,  and  in  such  cases  the 
court  must  judge  whether  the  occasion  is  a  fit  and  proper  one  for 
the  admission  of  such  defense,  and  the  jury  must  determine  the 
motives  and  the  end. 

Having  thus  attempted  to  vindicate  the  law  of  libel,  as  establish- 
ed in  this  commonwealth,  from  the  aspersions  which  are  frequently 
cast  upon  it,  we  will  consider  its  application  to  the  case  before  us, 
in  order  to  determine  whether,  upon  either  of  the  grounds  assumed, 
a  new  trial  ought  to  be  granted. 

The  other  objection,  which  opens  the  general  question,  is  that 
the  judge  refused  to  admit  in  evidence  the  inquisition  which  is 
alluded  to  in  the  publication,  and  with  a  view  to  prove  the  truth  of 
the  facts  therein  stated.  Had  the  inquisition  been  published  with- 
out any  defamatory  comment,  it  certainly  would  not  have  furnished 
ground  for  this  prosecution;  for  it  does  not  of  itself  contain  any 
libelous  matter,  and  it  is  in  the  nature  of  a  judicial  inquiry,  the 
publication  of  which  would  not  be  criminal,  unaccompanied  by  di- 
rect proof  of  malice.  The  inquisition  merely  states  that  a  deceased 
stranger,  who  was  found  dead  in  a  tavern  kept  by  Fowler,  came 
to  his  death  by  intoxication.  Now,  this  may  be  true  without  any 
implication  against  Fowler;  for  every  innholder  is  liable  to  have 
drunken  people  come  to  his  house,  and,  if  they  die  there,  he  may  be 
entirely  innocent  of  the  cause  of  their  death.  But  the  remarks  made 
by  the  defendant  charged  Fowler  with  having  administered  the  liq- 
uid poison,  and  thus  being  the  cause  of  the  death  of  the  stranger; 
and  the  public  are  warned  against  resorting  to  the  house  where 
such  practice  is  allowed,  and  the  municipal  authorities  are  invoked 
to  exert  their  power  by  taking  away  or  withholding  the  license  of 
Fowler  to  keep  a  public  house.  The  matter  of  this  publication  is 
certainly  libelous,  as  it  insinuates  gross  misconduct  against  Fowler, 
and  directly  charges  him  with  a  violation  of  his  duty,  and  exposes 
him  to  the  loss  of  his  livelihood,  so  far  as  that  depends  upon  the 


590  libel.  (Ch.  20 

reputation  of  his  inn  for  regularity  and  order.  Admitting  the  account 
of  the  inquisition  to  be  correct  as  published,  yet  the  addition  of  com- 
ments and  insinuations  tending  to  asperse  Fowler's  character  renders 
it  libelous.  Thomas  v.  Croswell,  7  Johns.  (N.  Y.)  264,  5  Am.  Dec. 
269. 

But  it  is  said  that  this  is  a  matter  of  public  concern,  and  that  the 
defendant  was  impelled  by  a  sense  of  public  duty  to  warn  travelers 
and  others  from  a  house  which  was  thus  deservedly  stigmatized.  The 
answer  is  that  the  defendant  did  not  select  a  proper  vehicle  for  the 
communication.  The  natural  effect  of  a  publication  of  this  sort  in  a 
newspaper  is  to  procure  a  condemnation  in  the  public  mind  of  the 
party  accused,  and  his  punishment,  by  bringing  his  house  into  dis- 
repute, without  any  opportunity  of  defense  on  his  part,  so  that  the 
accuser  becomes  judge  and  executioner  at  one  stroke,  and  his  purpose 
if  a  malicious  one,  is  answered  without  any  means  of  relief;  for  the 
mischief  to  the  person  libeled  would  be  quite  as  great  if  he  were  in- 
nocent as  if  he  were  guilty.  If  it  should  be  said  in  answer  that  all 
this  is  right  if  the  allegation  be  true,  and  if  not  true  he  may  recover 
his  damages  in  an  action  of  slander,  it  may  justly  be  replied  that  this 
remedy  is  uncertain  and  incomplete ;  for  in  many  cases  the  slanderer 
will  be  unable  to  respond  in  damages,  and  the  suffering  party  will 
be  subjected  to  the  additional  injury  of  a  troublesome  and  expensive 
lawsuit,  with  little  or  no  hope  of  recompense. 

There  may  be  cases  where  (there  being  no  other  mode  by  which 
great  mischief  can  be  warded  off  from  the  public)  a  newspaper  com- 
munication, made  with  the  sole  view  of  preserving  the  citizens  from  in- 
jury to  their  life  or  health,  would  be  justifiable.  Such  might  be  the 
case  of  an  apothecary  selling  and  distributing  poison  in  the  form  of 
medicine,  stated  by  a  distinguished  member  of  the  late  convention  for 
revising  the  Constitution.  This  is  an  extreme  case,  where  to  delay 
information  until  the  forms  of  law  should  be  pursued  might  endanger 
the  lives  of  hundreds,  and  such  a  case  would  be  a  law  to  itself;  the 
public  safety  being  the  supreme  law,  and  it  being  every  citizen's  duty 
to  give  warning  in  such  cases.  There  may  be  cases  of  gross  swindling, 
where  nothing  but  immediate  notice  would  secure  the  public  against 
depredation,  which  would  be  governed  by  the  same  principle. 

But  in  the  case  before  us  there  was  no  such  urgent  necessity.  The 
statute  regulating  licensed  houses  provides  the  restrictions  and  the 
punishmenl  which  tin-  legislature  has  thought  adequate  to  the  offenses 
of  the  nature  contained  in  this  libel.  For  suffering  excessive  drink- 
i  his  house,  the  innkeeper  is  subject  to  a  penalty.  For  a  second 
offense,  lie  is  to  be  put  under  bond  for  good  behavior,  in  addition  to 
uniary  mulct.  For  a  third,  he  is  to  forfeit  his  license  and  shall 
1,'-  disqualified  to  keep  a  public  house  for  two  years.  And,  besides 
all  lhi-.  if  bis  misconduct  is  continued  so  as  to  constitute  his  house 
disorderly,  or  so  thai  he  violates  the  law  for  regulating  it,  lie  forfeits 
the  penalty  of  bis  recognizance.    <  )ther  guards  and  securities  arc  pro- 


LIBEL.  591 

vided  in  the  statute  to  prevent  the  abuse  of  the  license,  and  a  com- 
plaint may  be  made  to  the  selectmen,  to  a  justice  of  the  peace,  or  to 
a  grand  jury,  by  any  prson  who  has  knowledge  of  such  offenses,  with- 
out incurring  the  risk  of  a  prosecution  for  libel.  There  was,  then, 
no  necessity  for  this  newspaper  publication,  and  the  defendant,  by 
resorting  to  it,  has  taken  the  law  into  his  own  hands  unwarrantably, 
instead  of  resorting  to  those  tribunals  which  the  laws  have  constituted 
for  the  correction  of  these  offenses.  This,  then,  is  a  case  in  which  the 
defendant  cannot  be  allowed  to  excuse  himself  by  showing  the  truth 
of  the  accusation  which  he  has  unjustifiably  made.  He  had  no  right  to 
arraign  the  prosecutor  before  the  public  in  the  form  which  he  adopted, 
and  thus  destroy  the  reputation  of  his  house,  without  leaving  him 
any  means  of  showing  his  innocence  of  the  charges  made  against  him. 
The  occasion  was  not  a  proper  one  for  a  newspaper  denunciation. 
Motion  for  a  new  trial  overruled. 


592  perjuet.  (Ch.  21 

CHAPTER  XXI. 
PERJURY. 


If  any  one  swear  a  false  oath  on  a  relic,  and  he  be  convicted,  let 
him  forfeit  his  lands,  or  half  his  "wer,"  and  let  that  be  common  to 
lord  and  bishop.  And  let  him  not  be  thenceforth  oath-worthy;  un- 
less he  the  more  thoroughly  before  God  make  "bot,"  and  find  him 
"borh"  that  he  will  ever  after  abstain  from  the  like. 

Laws  of  Cnut,  II,  36. 

Perjury  is  a  crime  committed  when  a  lawful  oath  is  ministered  by 
any  that  hath  authority,  to  any  person,  in  any  judicial  proceeding, 
who  sweareth  absolutely,  and  falsely  in  a  matter  material  to  the  issue, 
or  cause  in  question,  by  their  own  act,  or  by  the  subornation  of  others. 

3  Coke,  Inst.  161. 


CUSTODES  v.  GWINN. 
(Upper  Bench,  1G52.     Style,  324.) 

Howell  Gwinn  was  indicted  of  perjury  for  taking  of  a  false  oath 
in  an  affidavit  made  before  a  Master  of  the  Chancery,  and  was  found 
guilty.    It  was  moved  in  arrest  of  judgment.1 

(2)  It  doth  not  appear  that  the  party  took  a  false  oath,  for  it  ap- 
pears not  whether  the  Master  of  the  Chancery  had  any  power  to  take 
this  oath,  and  if  he  had  not  then  it  cannot  be  perjury. 

Maynard.  It  is  not  necessary  to  show  that  a  Master  of  the  Chan- 
cery hath  authority  to  take  an  oath,  for  it  is  the  common  course  and 
practice  of  the  Court  of  Chancery   for  the   Masters  to  take  oaths. 

Nicholas,  Justice.  A  Master  of  the  Chancery  of  common  right 
hath  no  power  to  take  an  oath,  and  therefore  in  this  case  you  should 
have  pleaded  precisely  that  he  had  authority,  otherwise  it  cannot  be 
good. 

Rome,  Chief  Justice.  Perjury  at  the  common  law  is  intended  to  be 
me  court,  and  legal  proceedings  for  a  false  oath  made  before  us 
not  touching  the  matter  in  question  between  the  parties,  an  indictment 
of  perjury  lies  not,  and  it  appears  not  here  that  the  Chancery  took 
notice  of  the  affidavit,  for  nothing  was  dune  upon  it.  If  one  make 
a  i;,i  e  oath,  the  party  is  punishable  for  it  by  an  action  upon  the  case, 
in  case  it  be  nol  perjury,  for  which  he  may  be  indicted  for  it.  A  false 
Oath  is  one  thing,  and  perjury  is  another  thing,  for  one  is  judicial,  and 
the   Other   is   extrajudicial.      And    the   law    inllicts   greater   punishment 

i  Part  of  this  '"isc  is  omitted. 


PERJURY.  593 


for  a  false  oath  made  in  a  court  of  justice  than  if  it  be  made  else- 
where, because  of  the  preservation  of  justice. 

Jermyn,  Justice,  said  that  perjury  takes  its  name  from  perverting 
of  justice,  and  therefore  it  is  intended  to  be  in  a  court  of  justice.  The 
court  held  the  indictment  ill,  and  gave  judgment  against  the  Custodes. 


GURNEIS'  CASE. 

(Star  Chamber,  1611.     3  Coke,  Inst.  166.) 

Damages  were  awarded  to  the  plaintiff  in  the  Star  Chamber  ac- 
cording to  the  value  of  his  goods  riotously  taken  away  by  the  defend- 
ant. The  plaintiff  caused  two  men  to  swear  the  value  of  his  goods 
that  never  saw  nor  knew  them.  And  though  that  which  they  swear 
was  true,  yet  because  they  knew  it  not,  it  was  a  false  oath  in  them,  for 
the  which  both  the  procurer  and  the  witnesses  were  sentenced  in  the 
Star  Chamber.1 


STATE  v.  HATTAWAY. 
(Supreme  Court  of  South  Carolina,  1819.    2  Nott  &  McC.  118,  10  Am.  Dec.  580.) 

Indictment  for  perjury.  The  facts  were :  One  Shackleford  having 
been  indicted  for  stealing  a  cow,  and  afterwards  discharged,  brought 
an  action  against  the  prosecutor  for  malicious  prosecution.  In  this 
action  Hattaway  was  called  as  a  witness,  and  testified  that  Shackle- 
ford  purchased  the  cow  in  question  from  one  Carter,  and  that  he  was 
present  at  the  time.  Being  asked  where  he  lived  at  the  time,  he  said, 
"near  Carter's,  perhaps  within  100  yards,"  whereas  it  was  proved  that 
he  did  not  live  in  the  state.  The  perjury  assigned  was  his  false  testi- 
mony as  to  where  he  lived. 

NoTT,  J.2  If  the  defendant  lived  100  miles  off,  and  was  present  at 
the  sale,  he  was  a  competent  witness  to  prove  it.  If  he  lived  within 
50  yards,  and  was  not  present,  he  could  know  nothing  of  the  matter. 

i  "Granting  the  materiality  of  the  fact,  whether  it  be  a  statement  or"  knowl- 
edge, or  of  information  or  belief,  or  a  simple  statement  of  a  fact,  if  the 
witness  knows  that  the  fact  is  not  so,  or  that  he  has  no  such  information, 
or  no  such  belief,  he  is  guilty.  But  if  he  only  swears  rashly  to  his  belief  of  a 
matter  of  which  he  does  not  profess  to  have  personal  knowledge,  the  jury  can- 
not be  permitted  to  decide  on  the  reasonableness  of  his  belief,  except  as  tend- 
ing to  show  whether  he  did  believe.  In  short,  perjury  is  always  of  some 
matter  of  fact;  and  belief  may  be  a  fact.  In  this  case,  the  only  questions  of 
fact  put  in  issue  by  the  indictment  and  by  the  law  are:  Was  the  Statement 
false,  and  did  the  defendant  know  it  to  be  false?  In  this  respect,  it  is  like 
the  offense  of  passing  a  counterfeit  note,  knowing  it  to  be  counterfeit. 
Proof  of  reasonable  cause  of  belief  may  warrant  a  jury  to  find  knowledge; 
but  it  is  not  the  legal  equivalent  of  knowledge."  Lowell,  J.,  in  United  States 
v.  Moore,  Fed.  Cas.  No.  15,803. 

2  Part  of  the  opinion  is  omitted. 
Mik.Cr.L..— 3S 


594  perjury.  (Ch.  21 

It  was  not  a  fact  of  such  a  nature  as  to  be  better  known  to  him,  in 
consequence  of  the  contiguity  of  residence.  It  may  sometimes  be  diffi- 
cult to  determine  how  far  the  evidence  of  a  particular  fact  may  go  to 
strengthen  the  testimony  of  a  witness  to  a  more  material  point  in  a 
case,  and  perhaps  no  precise  and  definite  rule  can  be  laid  down  on 
the  subject.  In  all  cases,  therefore,  so  highly  penal,  where  the  ques- 
tion is  of  a  doubtful  character,  I  should  incline  to  favor  the  side  of 
the  accused.  In  the  case  now  under  consideration,  I  cannot  conceive 
that  the  testimony  was  either  directly  or  indirectly  material  to  the 
issue.  I  am  of  opinion,  therefore,  that  a  new  trial  ought  to  be  granted. 
Colcock,  Johnson,  Richardson,  and  Gantt,  J  J.,  concurred. 


ARDEN  v.  STATE. 
(Supreme  Court  of  Errors  of  Connecticut,   1836.     11  Conn.  408.) 

Williams,  C.  J.  The  only  question  in  this  case  is  whether  the  false 
taking  of  a  poor  debtor's  oath  before  a  magistrate  authorized  to  ad- 
minister it  constitutes  the  crime  of  perjury.1 

Perjury,  as  defined  by  Lord  Coke  is  when  a  lawful  oath  is  admin- 
istered, by  any  that  hath  authority,  to  any  person,  in  a  judicial  pro- 
ceeding, who  sweareth  absolutely  and  falsely,  in  a  matter  material 
to  the  issue  or  cause  in  question,  by  their  own  act,  or  the  subornation 
of  others.  3  Inst.  163.  Hawkins  says  it  seemeth  to  be  a  willful  false 
oath,  by  one  who,  being  lawfully  required  to  depose  the  truth  in  any 
proceeding  in  a  course  of  justice,  swears  absolutely  to  a  matter  of 
some  consequence  to  the  point  in  issue,  whether  he  be  believed  or  not. 
1  Hawk.  P.  C.  c.  69,  §  1.  Chitty  adopts  Lord  Coke's  definition;  and 
Russell  speaks  of  a  proceeding  in  a  court  of  justice.  2  Russ.  1751. 
His  American  editor  concurs  with  Judge  Johnson,  in  the  case  before 
cited,  that  the  word  "court"  is  substituted  for  the  word  "course"  of 
justice.  And  it  is  believed  that  those  who  speak  of  a  judicial  pro- 
ceeding, and  of  a  proceeding  in  a  court  of  justice,  mean  the  same  thing. 
ft  is  apparent  it  cannot  be  intended  that  the  oath  must  be  administered 
before  a  court.  It  need  not  be  before  a  court  of  record.  2  Rol.  Abr. 
257.  It  may  be  before  a  court  baron.  1  Mod.  55 ;  Winch,  3.  Or  a 
court  of  requ<  >ts.  Hut.  34.  Or  an  ecclesiastical  court.  Cro.  Eliz. 
609;  1  Si<l.  454.  Or  before  commissioners.  1  Show.  397;  Cro.  Car. 
97.  Or  in  an  answer  in  chancery.  Cro.  Car.  321,  327,  353;  Cro. 
Kliz.  907;  2  Burr.  1189.  Or  upon  a  complaint  to  the  Chancellor,  on 
account  of  the  arrest  of  one  of  the  officers  of  his  court.  1  Term  Rep. 
63.  So,  too,  it  may  be  upon  some  collateral  matter,  not  directly  con- 
nected with  the  issue  of  a  cause  on  trial,  as  an  affidavit  to  hold  to  bail. 
Peake's  Cas.  112.  Or  when  one,  who  offers  himself  as  bail,  swears 
his  property  to  be  greater  than  it  is.     Cro.  Car.  116.     And  the  crime 

i  Pari  "f  tii''  opii  1 1 ted. 


PERJURY.  095 

may  be  committed,  in  some  court  of  justice  having  power  to  administer 
oaths,  or  before  some  magistrate  or  proper  officer  invested  with  simi- 
lar authority,  in  some  proceeding  relative  to  a  civil  suit,  or  criminal 
prosecution.    4  Bl.  Com.  137. 

In  the  case  before  the  court  it  is  not  denied  that  the  oath  was  false, 
the  intention  willful,  the  oath  lawfully  administered,  and  the  assertion 
absolute.  But  it  is  denied  that  it  is  in  the  course  of  judicial  proceeding, 
and  that  it  is  material. 

In  support  of  the  first  proposition,  it  is  said  that  it  was  decided,  in 
the  case  of  Betts  v.  Dimon,  3  Conn.  107,  that  the  magistrate  in  such 
a  case  acted,  not  judicially,  but  ministerially,  and  therefore  it  can- 
not be  perjury.  But  the  administration  of  an  oath  to  a  witness  giving 
a  deposition,  or  to  a  party  making  an  affidavit  to  procure  a  continu- 
ance of  his  cause,  or  to  bail  as  to  the  amount  of  his  property,  is  not  a 
judicial,  but  ministerial,  act,  and  yet  it  is  not  to  be  doubted  that  the 
deponent  might  be  guilty  of  perjury;  for  all  such  false  oaths  as  are 
taken  before  those  who  are  in  any  way  intrusted  with  the  administra- 
tion of  public  justice,  in  relation  to  any  matter  before  them  in  debate, 
are  properly  perjuries.    1  Hawk.  P.  C.  c.  60,  §  3. 

Here  the  magistrate  had  a  general  power  to  administer  oaths,  and 
the  particular  power  to  administer  this  oath.  He  was  intrusted  with 
a  portion  of  the  administration  of  public  justice;  for  he  was  to  de- 
cide, in  some  capacity,  whether  the  oath  should  be  administered.  The 
question  is  not  so  much  in  what  character  the  magistrate  acted,  as 
what  was  to  be  the  effect  of  his  act?  Would  it  affect  the  course  of 
public  justice?  For  that  purpose  we  must  look  at  the  situation  of 
these  parties.  After  the  usual  course  of  litigation,  the  creditor  had 
obtained  a  judgment  and  execution  against  his  debtor,  and  had  con- 
fined him  in  prison.  The  debtor  wished  to  be  relieved  from  the  in- 
convenience of  this  judgment,  and  to  deprive  the  creditor  of  one  of 
those  means  of  satisfying  it  which  the  law  had  given  him,  and  for 
this  purpose  took  the  oath  which  has  given  rise  to  this  inquiry;  and 
the  effect  of  it  is  to  relieve  him  from  the  operation  of  the  judicial 
sentence  and  to  deprive  the  creditor  of  the  benefit  of  it.  Is  not,  then, 
the  immediate  effect  to  interfere  with  the  course  of  public  justice? 

Suppose  the  application  were  for  a  new  trial,  or  an  audita  querela, 
or  a  habeas  corpus,  and  a  similar  oath  had  been  taken  before  a  magis- 
trate; could  there  be  a  doubt  that  it  would  be  perjury?  The  effect  in 
some  of  these  cases  might  be  greater ;  but,  as  it  respects  this  question, 
they  seem  to  be  of  a  similar  character.  They  all  are  intended,  after 
final  judgment,  to  vary  the  situation  and  rights  of  the  litigant  parties, 
and  to  deprive  the  creditor,  in  a  greater  or  less  degree,  of  the  fruits 
of  that  judgment.  If,  then,  this  be  not,  technically  speaking,  a  ju- 
dicial proceeding,  the  court  cannot  say  it  is  an  extrajudicial  proceed- 
ing; but,  on  the  other  hand,  they  think  it  is  a  proceeding  calculated 
materially  to  affect  the  course  of  justice. 


5UG  PERJURY.  (Ch.  21 

It  was  further  said  that  here  was  no  point  in  issue,  or,  in  the  lan- 
guage of  the  law,  nothing  in  debate,  between  these  parties.  So  far 
as  regards  a  formal  issue,  this  is  true;  and  that  will  apply  to  every 
oath  collateral  to  the  question  at  issue.  But  here  the  real  question  be- 
tween the  parties  was,  shall,  or  shall  not,  this  debtor  be  liberated  from 
his  imprisonment,  unless  the  creditor  will  support  him?  A  question 
of  deep  interest  to  one  party,  and  of  some  importance  to  the  other; 
a  question  which  the  forms  of  proceeding  cannot  conceal. 

The  court,  therefore,  are  of  opinion,  and  advise  the  superior  court, 
that  the  offense  charged  in  this  information  is  perjury,  and  that  there 
is  no  error  in  the  judgment  of  the  county  court. 


REGINA  v.  TYSON. 

(Court  for  Crown  Cases  Reserved,  1867.    L.  R.  1  C.  C.  107.) 

At  a  session  of  the  Central  Criminal  Court,  held  on  the  10th  of 
June,  1867,  and  following  days,  Thomas  Tyson  was  tried  before  me 
on  an  indictment  for  perjury.  It  was  alleged  in  the  indictment,  and 
appeared  in  evidence,  that  at  the  May  session  of  the  Central  Criminal 
Court  one  Owen  Sullivan  was  tried  for  a  robbery,  and  that  upon  that 
trial  Tyson  was  called  as  a  witness  on  behalf  of  Sullivan.  The  indict- 
ment went  on  to  allege  that  upon  the  trial  of  Sullivan  it  was  material 
to  ascertain  whether  Sullivan  was  or  was  not  at  a  house,  No.  20,  in 
Mint  street,  in  the  borough  of  Southwark,  on  the  evening  of  the  13th 
of  April,  1867,  between  the  hours  of  8  o'clock  and  10  o'clock,  and 
whether  Sullivan  had  lived  at  the  same  house  for  two  years  then  last 
past,  or  from  March,  18G5,  to  March,  18G6;  and  that  Tyson  falsely 
swore  as  such  witness,  first,  that  on  the  13th  day  of  April,  1867,  Sulli- 
van came  to  20  Mint  street  at  half-past  8  in  the  evening,  and  did  not 
go  out  again  that  evening;  second,  that  Sullivan  had  lived  in  the 
said  house  for  two  years  then  last  past;  and,  third,  that  during  the 
whole  of  that  time  Sullivan  had  never  been  absent  from  the  same  house 
for  more  than  three  nights  together.  Perjury  was  assigned  upon 
each  of  the  above  allegations,  and  the  prisoner  was  convicted  on  the 
last  two. 

I  reserved  the  question  for  the  consideration  of  the  court  whether 
the  two  last  allegations  of  Tyson,  upon  which  perjury  was  assigned, 
sufficiently  material  on  the  trial  of  Sullivan  to  support  the  in- 
dictment for  perjury  in  respect  of  them. 

Ki.i.i.v,  C.  B.  The  real  question  is  whether,  on  this  indictment,  these 
two  statements  were  material.  We  all  agree  that  they  were,  as  they 
tended  to  r<  nd<  r  more  probable  the  truth  of  the  first  allegation.  When 
it  had  been  worn  by  rhe  witness  thai  a1  the  time  of  the  robbery  Sul- 
livan was  in   Mint  street,  it  tended  to  render  that  statement  infinitely 


PERJURY.  597 

more  credible  to  add,  "I,  as  deputy,  know  that  he  lodged  there  for 
nearly  two  years,  and  never  was  absent  more  than  a  night  or  two 
all  that  time."  Under  the  circumstances,  without  giving  any  opinion 
as  to  whether  the  conviction  could  have  been  supported  if  the  evi- 
dence had  affected  the  witness'  credit  only,  we  affirm  the  conviction.1 

i  Bramwell,   B.,  and  Lush,  J.,  delivered  concurring  opinions.     Willes  and 
Byles,  JJ.,  concurred. 


INDEX. 


[the  figures  befeb  to  pages.] 


ABANDONMENT, 

of  criminal  enterprise.    Pinkard,  188;  Dill,  224  n. 

notification  of.    Button,  247 ;  Allen,  276. 
of  property  by  thief.    Townley,  393;  Foley,  39G  n. 
by  owner.    Edwards,  399  n. 

ABDUCTION,  Anderson,  33;  Prince,  97. 

ABORTION, 

what  is,  Mills,  317. 

whether  homicide.    Bracton,  329 ;  Coke,  330. 

ACCESSORY  BEFORE  THE  FACT, 

who  is.    Jeffries,  265 ;  Hale,  278. 

distinction  between  principal  and.    Kelley,  279. 

direct  communication  between  principal  and,  not  necessary.     Cooper,  279. 

in  treason,  misdemeanor,  and  statutory  offenses.    Tracy,  280. 

for  what  acts  of  principal  liable.    Saunders,  281. 

in  manslaughter.    Bibith,  282. 

by  counseling  death  of  unborn  child.    Coke,  330. 

conviction  of.     Bibith,  282. 

ACCESSORY  AFTER  THE  FACT, 

who  is.    Robert,  283 ;  Davis,  283  ;  Butterfield,  286. 

distinction  between  receiver  of  stolen  property  and.     East,  537;   Dyer. 
538 ;  Gruncell,  539. 

ADULTERER, 

as  a  receiver  of  stolen  goods.    Kenny,  405. 

ADULTERY, 

what  constitutes.    Roberts,  8. 

jurisdiction  of.    Grisham,  10  n. 

as  provocation  to  homicide.     Mawgridge,  367 ;  Grugin,  376 ;  Yanz,  382. 

AFFRAY, 

what  is.    22  n. 

AGENT,  see  Principal. 

responsibility  for  act  done  for  principal.    290  n. ;  17  n. 

ANIMALS, 

maliciously  injuring.    Cramer,  23. 

killing.    Sutton,  187. 

subject  of  larceny,  see  Larceny. 

APPEAL, 

of  rape.    Reginald,  320. 

APPROVING,  Britton,  56. 

ARREST, 

homicide  in  effecting.    Leonin,  225;  Rice,  225;  Storey,  234. 
homicide  in  resisting.    Miers,  250. 

Mik.Cb.L.  (599) 


GOO  INDEX. 

[The  figures  refer  to  pages.] 

ARSON, 

what  constitutes  crime  of.     Britton,  56S. 
punishment  for.    Britton.  56S. 
intent  in.    Mirror,  56S ;  Hale,  568. 
the  place  burnt.    Hale,  568. 

what  interest  in.  prevents.    Harris.  568;  Gowen,  570. 
the  burning  in,  what  is  sufficient.     Russell,  571. 

ASSAULT, 

what  constitutes  crime  of.    Hawkins,  291 ;  Daniel,  294;  Chambless,  298  n. ; 

Fuller,  299  n. 
whether  intent  to  harm  necessary  in.     Tuberville  v.  Savage,  291;  Myers, 

292;  Chapman,  296;  Chambless,  299  n. 
by  stripping  patient.    Bartell,  39. 
by  pointing  unloaded  gun.    Chapman,  296. 
by  exposure  to  danger.    March,  292. 
by  communication  of  disease.    Clarence,  299. 
whether  words  justify.    Grugin,  376. 
as  provocation  in  homicide.    Mawgridge,  367. 

ASPORTATION, 

in  larceny,  what  constitutes.     Cherry,  409;   Simpson,  409;  Wallis,  412; 

White,  412 ;  Alexander,  414 ;  Gettinger,  415  n. ;  Dyer,  53S. 
necessity  for,  abolished.    414  n. 
by  innocent  agent.    Manley,  262;  Cummins,  415. 

ATTEMPT, 

distinction  between  preparation  and.    Murray,  192;  Hurley,  193. 
what  intent  necessary.    Simpson,  202. 

when   full    crime   impossible.     Clark,    196;    Jaffe,    198;    Foster,    204   n. ; 
Gardiner,  198  n. 

AUTHORITY, 

public,  as  a  defense.    Hale,  224 ;  Leonin,  225 ;  Rice,  225. 

domestic,  as  a  defense.    Bradley,  229 ;  Oliver,  229 ;  Grey,  230  ;  Boyd,  231. 

improper  exercise  of.    Grey,  230. 


BAIL. 

when  allowed  in  homicide.    Hawkins,  329. 

BAILEE, 

larceny  by.     Reeves,  426;  Meeres,  441;  Leigh,  442;  Evans,  413;  Carrier, 
443 ;  Langley,  440 ;  Madox,  446 ;  Brazier,  449 ;  Seinple,  450 ;  Thompson, 
453;  Saward,  468. 
larceny  by  owner  from.    Anon.,  402;  Henry,  402. 

BARRATRY, 

what  is  crime  of.    Hawkins,  17  n. 

BATTERY, 

what  is.     Hawkins,  291  ;  Cotesworth,  309. 

by  striking  wife.     Bradley,  229;  Oliver,  229;  Richards,  230  n. 

by  striking  pupil.    Boyd,  231. 

by  negligenl  act    Gill,  309. 

by  malpractice.    Bartell,  39. 

by  Indirect  application  <>r  force.    Davis.  309. 

by  OSe  of  excessive  fore-.      I'.ny.l,  L'.-'.l  ;    Floyd,  239. 

consenl  as  a  defense  In.    Beck,  36;  Champer,  37;  Coney,  37;  Bartell,  39. 
;is  provocation  in  homicide.    Mawgridge,  367. 

BIGAMY, 

what  constitutes.    Tolson,  101. 

BLASPHEMY,  Tayler,  20. 

m:i;  IKING  BULK, 

what  is.    Langley  v.  Bradshaw,  446;  Madox,  448;  Brazier,  449. 
hm  eny  by,  see  Larceny. 


INDEX.  601 

[The  figures  refer  to  pages.] 

BURDEN  OF  PROOF,  see  Proof. 

BURGLARY, 

what  is.    Britton,  -r.53;  Coke,  553. 
punishment  for.     Britton,  553. 
when  complete.     Brown,  365. 

the  breaking.     Hyams,  553 ;  Dupree,  554  ;  Brice,  555 ;  Lewis.  ."G. 
constructive  breaking.     Le  Mott,  557. 
breaking  out,  557  n. 

breaking  inner  doors.    Gray,  5G0;  Moore,  5G0. 
the  entry.     Davis,  55S;  O'Brien,  558;  Crawford,  559;  Gray,  5G0;  Moore, 

5G0. 
the  place  broken.    Anon..  5G1 ;  Resolution,  561;  Anon.,  5G2;  Garland,  562 ; 
Harris,  563 ;  Quinn,  5G3. 

BURNING,  see  Arson. 

CARNAL  KNOWLEDGE,  see  Rape. 

of  children,  a  felony.    Stat,  320 ;  320  n. ;  326  n. 
CAUSE  OF  DEATH,  see  Homicide. 

CHALLENGE  TO  FIGHT, 
sending,  is  criminal.    20  n. 

CHAMPERTY, 

what  is.    Hawkins,  17  n. 

CHEATS, 

by  false  tokens.    Powell,  27;  Middleton,  28;  Stat.,  510;  Jones,  510. 
CLERGY, 

exempt  from  service  in  civil  office.    Greene,  4. 

benefit  of,  taken  from  murder.    Hawkins,  350 ;  Mawgridge,  3G7. 
COERCION, 

by  husband  of  wife.     Ine,  59;   Bracton,  59;  Connolly.  59;   Hughes,  59;. 
Seiler,  61 ;  Mafoo,  61 ;  Cruse,  61. 

by  command  of  superior.    Memorandum,  62 ;  Riggs,  63. 

by  threats  of  harm.    McCarty,  65 ;  Brewer,  66 ;  Bain,  G7  n. 

effect  of,  in  reducing  grade  of  offense,  67  n. 

COMMAND,  see  Coercion. 

COMMON  LAW, 

of  England,  whether  enforced  in  federal  courts.     Worrall,  L 
how  far  enforced  in  state  courts.    Greene,  4 ;  10  n. 
punishments,  how  far  adopted  in  United  States.    James,  6. 
practice,  evidence  of.    Roberts,  8  n. 
how  far  abrogated  by  statute.    Pulle,  9. 
law  of  nations,  part  of.    De  Longchamps,  18. 
offenses,  13-35. 

COMPOUNDING, 

what  is.    17  n. ;  283  n. 

COMPULSION,  see  Coercion. 

CONDONATION, 

of  party  injured  as  a  defense.    Roberts,  53 ;  Williams,  53 ;  Carr,  54. 
of  state  as  a  defense.    Britton,  56;  St.  John,  56. 

CONSENT, 

effect  of,  in  battery.    Beck,  36;  Champer.  37;  Coney,  37;  Bartell,  39. 

effect  of,  in  assault    Chambless,  298;  Clarence,  299. 

effect  of,  in  carnal  knowledge.    40  n. 

fraud  as  effecting.    Bartell,  39 ;  Clarence,  299 ;  Don  Moran,  320 ;  Flattery, 

326. 
of  parent  to  assault  on  child.    March,  292. 
effect  of,  in  rape.    Don  Moran,  320. 


602  INDEX. 

[The  figures  refer  to  pages.] 

CONSENT — Continued, 

must  be  as  broad  as  act.    Mitchum,  429. 

effect  of,  when  given  for  detection.     Speiden,  40 ;  Currle,  43. 

of  state,  effect  of.    Hale,  46. 

when  given  for  detection.    Ford,  46 ;  Myers,  47. 
resistance  necessary  to  negative,  in  rape.    Shields,  326. 
submission  not.    40  n. 

CONSPIRACY, 

what  constitutes  crime  of.     Buchanan,  204;  Stewart,  219. 
to  procure  discharge  of  workmen.    Bykerdike,  207;  Stewart,  219. 
to  raise  wages.    Sheriff,  20S. 

combinations  to  resist  combinations.    Cote  v.  Murphy,  211. 
to  commit  adultery.     Shannon,  224  n. 
by  acting  with  conspirators.    Mather,  224  n. 
abandonment  of.    Dill.  224  n. 
CONSTRUCTIVE  INTENT,  see  Intent 

CONTEMPT, 

what  is,  17  n. 

power  of  courts  to  punish.  Worrall,  L 

CONTRIBUTORY  GUILT, 

of  person  injured  as  a  defense.    Martin,  51. 

CONTRIBUTORY  NEGLIGENCE, 

as  a  defense.    Longbottom,  49;  Hawkins,  332;  Rew,  333. 

COOLING  TIME, 

what  is.     Hill,  371;  McCants,  373. 

CORPORATIONS, 

not  indictable  at  common  law.    Anon.,  182. 
for  what  crimes  indictable.     Kelso  Co.,  182. 

CORRECTION,  see  Authority. 

CORRUPTION  IN  OFFICE, 
is  criminal.    Williams,  14. 

COURTS, 

what,  have  jurisdiction  of  spiritual  offenses.    Grlsham,  10  n. 

CUSTODY,  see  Possession. 

CUSTOM, 

as  a  defense.    Lawrence,  57. 

of  courts,  as  evidence  of  law.    Roberts,  8  n. 

DECENCY, 

offenses  against    Bell,  30;  Williams,  32;  Anderson,  33. 

DEFENSE, 

of  self.    Marshall,  109;  Howell,  234;  Anon.,  238;  Snell,  2.12. 

must  be  proportioned  to  attack.    Floyd,  239. 

when  necessity  only  apparent.    Goodall,  239. 

duty  to  retreat.     Rowe,  242;  Gardner,  244;  Greer,  253;  Butt  mi.  217. 

when  withdrawal  revives  right  of.     Button,  247. 

in  resisting  Illegal  arrest.    Rice,  225;  Miers,  250. 

how  pleaded.    Hawkins,  32!). 
of  others,  extent  of  right     Nash,  139;  Snell,  252;  Greer,  253;  Morrison, 

254  :  Mawgridge,  867. 
of  property,  extent  of  right    Hinchcliffe,  266;  Morgan,  266. 
of  dwelling,  extent  of  right    Braoton,  2ol ;  Cook,  258;  Ford,  259;  Carroll, 
269;  Taylor,  261 

DELIRIUM  TREMENS, 
:is  a  defense.    Haab,  176. 

DELUSION, 

as  a  defense.    MoNaughten,  145 ;  Machekequonabe,  188:  Hotema,  148. 


INDEX.  603 

[The  figures  refer  to  pages.] 

DESTROYING  PROPERTY, 

whether  larceny.    Anon.,  486 ;  Cabbage,  487. 

DRUGS, 

habitual  use  of,  as  defense.  Wilcox,  180  n. 

DRUNKENNESS,  see  Intoxication. 

DWELLING  HOUSE, 

what    is.      Resolution,    5G1 ;    Anon.,    562;    Garland,    562;    Harris,    563; 

Quinn,  563. 
larceny  from,  see  Larceny. 

DURESS,  see  Coercion. 

EAVESDROPPING, 

is  indictable.    Williams,  32. 

ECCLESIASTICAL  OFFENSES, 

whether  punishable  in  the  United  States,  10  n. ;  Anderson,  33. 

ELECTIONS, 

procuring  false  return  of  votes  at,  Indictable.    McHale,  14. 

EMBEZZLEMENT, 
what  is.    Stat.,  505. 
what  is  a  receiving  "by  virtue  of  employment."     Smith.   50." ;   Snowley, 

506;  Aston,  506. 
what  is  a  receiving  "for  or  on  account  of  another."    Culluin,  507. 
whether  an  offense  distinct  from  larceny.    509  n. 
conviction  of,  on  indictment  for  larceny.    509  n. 

EMBRACERY,  17  n. 

ENGLESCHIRE, 

presentment  of.    Haickins,  350. 

ESCAPE, 

is  criminal.    17  n. 

what  force  may  be  exerted  to  prevent.    Rice,  225. 

from  unlawful  arrest,  what  force  may  be  exerted  to  prevent.    Miers,  250. 

EX  POST  FACTO  LAWS, 
effect  of.    Thurston,  132. 

FALSE  IMPRISONMENT, 

what  is.    East,  315;  Smith,  315;  Bird  v.  Jones,  316  n. 
as  provocation  in  homicide.  Mawgridge,  367. 

FALSE  PRETENSE,  OBTAINING  PROPERTY  BY, 
condoning.    Carr,  54. 
declared  criminal.    Stat,  510. 
distinguished  from  larceny.    Stewart,  470;  Williams,  477;  Middleton,  47S; 

Canter,  512. 
what  property  subject  of.    Cummings,  511. 
whether  owner  must  intend  to  pass  title.    Canter,  512. 
when  property  is  obtained  for  another.    Musgrave,  513  n. 
whether  pretense  must  be  false.     Spencer,  513. 

whether  pretense  must  be  known  to  be  false  by  one  making  it.    Bird,  527. 
whether  pretense  must  be  of  existing  fact.    Lee,  514. 
pretense  by  acts.    Murphy,  515;  Jones,  510.  515. 
pretense  by  misrepresentation  of  quality.     Bryan,  516;  Ardley,  523. 
whether  pretense  must  be  false  at  time  of  obtaining.    Wheeler,  523  n. 
whether  actual  loss  necessary.    Spencer,  513  ;  Evans,  513  n. 
extent  to  which  pretense  must  be  relied  on.     English,  526 ;  Gardner,  528 ; 

Whiteman,  531. 
whether  absurdity  of  pretense  material.    Bird,  527. 
remoteness  of  pretense.    Gardner,  52S ;  Button,  530. 
Intent  necessary.     Williams,  534;  Stone.  .":;."">;  Naylor,  535. 


G04  INDEX. 

[The  figures  refer  to  pages.] 

FALSE  TOKEN,  see  Cheats. 

FELONY, 

force  in  prevention  of.     Leonin,  225;  Howell,  234;  Storey,  234 
misprision  of.     Hawkins,  17  n. 

FIGHTING, 

by  agreement,  when  a  battery.    Champer,  37 ;  Coney,  37. 
homicide  in.     Mawgridge,  367. 

FOETUS,  see  Homicide. 

FOOD. 

selling  unwholesome,  indictable,  27  n. 

FORGERY, 

what  is.    East,  572;  Smith,  574. 

of  receipt.    Ward.  572. 

of  trade  labels.     Smith,  574. 

of  will  of  lands.    Wall,  576. 

of  invalid  bill  of  exchange.    Teague,  576. 

tendency  of  instrument  to  deceive.    Baldwin,  578;  Wall,  576:  Teague,  576. 

by  signing  name  of  nonexistent  person.     Lockett,  577. 

by  filling  in  blank  check.     Wright,  581. 

by  obtaining  signature  by  false  representations.     Sankey,  5S1. 

intent  necessary  in.     Sheppard,  582 ;  Hodgson,  5S3. 

FORNICATION, 

whether  indictable.    Anderson,  33. 

FRAUD, 

effect  of  consent  obtained  by.    Bartell,  39;  Don  Moran,  320;  Flattery,  320 
by  suppression  of  truth.    Clarence,  299. 

GAMING  HOUSE, 

whether  keeping,  criminal.    32  n. 

GAS, 

whether  subject  of  larceny.    White,  412. 

GRAND  LARCENY, 

what  is.    Hale,  497. 

value  in,  how  estimated.     East,  498;  Maggard,  497  n. ;  Hathaway.  -4H7  n. ; 

Brown,  497  n. 
distinction  between  several  petit  larcenies  and.     Hale,  497;  Jones,  -i'Jl ; 

Birdseye,  498. 

GUILT, 

of  party  injured  whether  a  defense.     Martin,  51. 

HEALTH, 

offenses  against  public.    Taylor,  20;  Vantandillo,  26. 

HOMICIDE,  see  Murder;  Manslaughter. 

by   negligence.     Senior,  77;   Minor,  117;   Hull,   117;   Knight,   118;   Rlg- 

maidon,  ii!>;  O'Brien,  120;  McCloud,  122;  Westrupp,  124;  Fain,  il'U  q. ; 

Marriott,  128;  Pocock,  131. 
in  effecting  arrest.    Leonin,  225;  Rice,  225;  Storey,  234. 
in  resisting  arrest.     Mlers,  250. 
in  prevention  of  crime.     Howell,  234;  Storey,  234. 
what  is.    Bracton,  828. 
the  several  kinds  of     Hawkins,  328. 
by  misadventure.    Roger,  828  n. 

destruction  of  foetus  as.    Bracton,  32!);  Coke,  :::•,<);  Brain,  830. 
cause  of  death  in.    Jackson,  ::::i  n. ;  Hawkins,  881;  <;<Te.  832;  new,  333; 

Buggins,   334;   Towers,  335;    Hickman.  .".30;    West,  337;    l'.ennett,  33JS ; 

Lewis.  340;  Taylor,  846;  Benge,  880;  Elsenhower,  345  n. 
t>y  causing  premature  birth.    West,  337. 
HOUSE     ee  Dwelling  House. 


INDEX.  605 

[The  figures  refer  to  pages.] 

IGNORANCE,  see  Mistake. 

INCITEMENT,  see  Solicitation. 

INDECENCY. 

whether  indictable.     Bell,  30. 

INFwheCnYa  defense.  Item,  143;  Godfrey,  143;  Manley,  262;  Foster.  204. 

INSwh!'nT;  defense.     Beverley,  145;  McNaghten,  145 ;  Hotema    148 ;  Mosler, 
L50;  Knight,  152;  Lowe,  156;  Jones.  157;  Fain,  108  n. ;  Haab,  1<0. 
induced  by  drugs.     Wilcox,  180  n. ;  Rogers,  181  n. 

INTENT. 

essential  to  criminality.     Bacon,  73. 

whether  anciently  punishable  without  act.    Bacon,  188, ,188  n. 

union  of  act  and,  essential  to  criminality.    Yoes    12 ;  Matthews,  ISO,  Mil 

ton,  186 ;  Sutton,  187 ;  Pinkard,  188 ;  Bacon,  188. 
implied  from  act.    Regan,  76. 
whether  question  of  law  or  fact     Sheppard,  582. 

iSSS535L,in,  86;  Adams,  88;  Pembliton, 
whe5tUTneecess3a3r8y  in  statutory  crimes.     Adams,  88;  Prince,  97;  Tolson, 

specmc^fpSor  of  essential.     Duffin.  92;  Holt,  93;  Doddridge,  94; 
Pembliton,  95;  Williams,  114;  Rogers,  181  n. 

how  proved.     Simpson.  202. 
when  several,  concur.    Williams,  114 ;  Gillow,  no. 
supplied  by  negligence.     See  Negligence. 

see,  further,  under  the  several  crimes. 

INThiXperforma^ce  of  duties  of  public  office,  injectable.    14  n. 

when  a  defense.    Beverley,  169;  Flanigan U, .;  Haab  ,  1, a, 

effect  when  specific  intent  necessary.     V\  bitten   181 ;  Rosas,  181  n. 

pffeet  in  cnusiu^  mistake  of  fact    Marshall,  169. 

effert  as  bSrlng  ot ^question  of  provocation.     Thomas,  169;  Keenan,  1.0. 

IRRESISTIBLE  IMPULSE, 

to  kill.    Mosler,  150;  Knight,  152;  Lowe,  156;  Jones,  157. 
to  drink.    Flanigan,  173. 

JURISDICTION,  .  w^ron    1 

nf  fedei-il  courts  over  common-law  crimes.  Worrall,  l. 
w^en  goods  sSen  in  one,  are  brought  by  thief  into  another.    Butler,  430; 
Stinson,  430. 

JUROR,  m   .    ...  ..       ,_  „ 

preventing  attendance  of,  indictable.     17  n. 

JUSTICE,  eo„ 

offenses  against  public.    Anon.,  lo  et  seq. 

disobeying  order  of.    16  n. 
JUSTIFICATION,  see  Authority;  Defense, 


KIDN \PPING 

what  is.    East,  315 ;  Designy,  316  ;  Burns,  316  n. 

KLEPTOMANIA, 

whether  a  defense.    Lowe,  lo6. 


G06  INDEX. 

[The  figures  refer  to  pages.] 
LARCENY, 

what  is.    Bracton.  3S6 ;  Holloway,  3S6. 
property  subject  of. 

animals  ferae  naturae.     Anon.,  386;  Searing,  387;  Townley,  393. 
animals  reclaimed.    Haywood,  3S7  n. 
dung.     Carver  v.  Pierce,  3S8. 
writings  concerning  realty.    Westbeer,  3SS. 
things  of  value  to  owner  only.    3S7  n. 
fixtures.    Hoskins  v.  Tarrence,  3S9. 
choses  in  action.     Watts,  389. 
gas.     White.  412. 

things  abandoned.    Edwards,  399  n. ;  Sikes.  399  n. ;  Haynes,  400. 
severed  realty.     Foley,  396  n. ;  Steimling,  397. 
from  thief.    Anon.,  400;  Ward,  401. 
by  owner.     Anon..  402:  Henry,  402. 

by  wife.    Anon.,  405;  Kenny,  405;  Willis,  408;  Streeter,  543. 
by  joint  owner.     Bramley,  407. 
from  the  person.     Simpson,  409. 
the  caption  and  asportation.    Cherry,  409  et  seq. 
by  servants.     Dingley,  416;  Bull,  418:  Sullens,  419;  Masters.  420;  Reed, 

422:  Reporter's  Note,  463;  Anon.,  463;  Paradice,  464. 
by  bringing  stolen  goods   into  another  jurisdiction.     Butler,   430;   Stin- 

son,  430. 
of  lost   goods.     Matthews.    186;   Merry   v.   Green,   431;   Thurborn,   434; 

Brooks,  438;  Lawrence,  440. 
whether  appropriation  by  bailees  is.    Reeves,  426;  Meers,  441;  Leigh,  442; 
Evans,  443;  Madox,  446;  Saward,  46S ;  Semple.  430;  Thompson,  453  n. 
appropriation  by  bailees  after  breaking  bulk.    Carrier,  443 ;  Langley,  446 ; 

Madox,  446;  Brazier,  449. 
bv  appropriation  of  property  delivered  by  mistake.     Hehir,  453;  Ashwell. 

456  n. ;  Middleton,  478. 
from  a  vessel.     Madox,  446. 
when  title  is  parted  with.     Thomas,  464;  Wilson,  472;  Nicholson,  473; 

Middleton,  478. 
by  tri.k.     Stewart,  470;  Robson,  475;  Skllbrick,  476;  McGrath    478. 
how   distinguished   from   false   pretense.     Stewart,   470;   Williams.  477- 

Middleton,  478;  Canter,  512. 
intent  necessary  in.    Fisherman,  4S6  et  seq. 
from  dwelling. 

not  distinct  crime  at  common  law.     East,  400. 
property  must  be  under  protection  of.     Owen.  400. 
whether  stealing  in  own  house  is.    Taylor,  500. 
lucri  causa  in.     Anon.,  4S6;  Cabbage,  4S7;  Richards,  490;  Jones,  491. 
see  Grand  Larceny. 

LEASING, 

for  Immoral  purposes  indictable.  32  n. 

LIBEL, 

of  deceased  person.     De  Llbellls,  585. 

forms  of.     De  Llbellls,  585;  Gathercole,  5S6  n. 

truth  as  a  defense  In.    De  Llbellls,  585;  Stat.,  5S5;  Blandlng,  5S7. 

publication  of,  what  is.    Giles,  586. 

privileged  communications.    Blandlng,  587. 

LOCALITY,  see  Jurisdiction. 

LOCUS  i'i:.\N  i:\ti.i:.  gee  Abandonment 

LUCB1  CAUSA,  see  Larceny. 


MAINTENANCE, 

what  is.    HawMtu,  17  n. 


I.M.KX.  607 

[The  figures  refer  to  pages.] 
MALICE, 

meaning  of.    Pembllton,  95;  Honeyman,  352;  Chance,  354  n. 
implied  In  killing.    Huggins,  334;  Greenwood,  338;  Halloway,  351;  Honey- 
man,  352. 

MALICIOUS  MISCHIEF, 

what  indictable.    Cramer,  23. 
MANSION  HOUSE,  see  Arson ;  Burglary. 

MANSLAUGHTER, 

by  negligent  act.     Longbottom,  49;  Franklin,  86;  Knight,  118;   Burton, 

118;    Rigmaidon,    119;    Hardie,    119;    O'Brien,    120;    Macloud,    122; 

Benge,  339. 
by  negligent  omission.     Senior,  77;   Westrupp,   124;   Marriott,   128;   Po- 

cock,  131. 
by  infecting  with  disease.    Greenwood,  338. 
provocation  sufficient  to  reduce  murder  to.    Mawgridge,  367 ;  Grugin,  376 ; 

Yanz,  382 ;  Spivey,  375  n. 
what  is  voluntary.    Mawgridge,  367. 

heat  of  blood  and  cooling  time.     Hill,  371 ;  McCants,  373. 
fear,  whether  sufficient  to  reduce  murder  to.    Nargashian,  385  n. 

MAYHEM, 

what  is.    Foster,  310. 

MENS  REA, 

meaning  of.    Tolson,  101. 

MISPRISION, 

what  is.    Hawkins,  17  n. 

MISTAKE  OR  IGNORANCE, 

of  law  as  a  defense.    Thurston,  132 ;  Boyett,  132 :  Cutter,  135. 
of  fact  as  a  defense.     McDonald,  137 ;  Ashton,  67 ;  Tolson,  101 ;  Reppeth. 
Ill ;  Isham,  81 ;  Prince,  97 ;  Hawksworth,  137 ;  Machekequonabe,  138 ; 
Nash,  139;  Goodall,  239;  Yanz,  382. 
effect  of,  in  giving  possession.     Hehir,  453. 

in  passing  title.     Hehir,  453 ;  Middleton,  478. 

MOTIVE, 

whether  material.     Schmidt,  75;  Regan,  76;  Senior,  77. 

MURDER, 

what  is.    Hawkins.  350. 

what  is,  in  first  degree.    Keenan,  170 ;  Stat.,  360 ;  Drum,  361 ;  Brown,  365. 

what  is  in  second  degree.    Stat.,  360. 

in  attempt  to  commit  burglary.    Brown,  365. 

in  resisting  arrest    Rice,  225 ;  Pew,  352 ;  Cook,  258. 

in  excessive  correction.    Grey,  230. 

time  within  which  death  must  ensue,  to  be.    Hawkins,  332. 

by  neglect  to  provide  necessaries.    Marriott,  128. 

by  cruel  acts.    Halloway,  351 ;  Honeyman,  352. 

in  commission  of  a  felony.    Horsey,  355;  Serne,  366. 

in  commission  of  suicide.    Levelle,  359. 

MUTINY, 

necessity  as  a  defense  in.    Ashton,  67. 

NATIONS,  LAW  OF, 

whether  part  of  common  law.    De  Longchamps,  18. 

NECESSITY, 

as  a  defense.     Ashton,  67;  Dudley,  70  n. ;  Goff,  71;  Holmes,  71  n. ;  Mc- 
Carty,  65. 
NEGLIGENCE,  see  Contributory  Negligence. 

what  are  culpable  acts  of.  Longbottom,  49;  Hull,  117;  Burton,  US; 
Knight,  118;  Rigmaidon,  119;  Macleod,  122;  Fain,  122  n. ;  Gill,  309; 
Hawkins,  331. 


608  INDEX. 

[The  figures  refer  to  pages.] 
NEGLIGENCE— Continued, 

what  are  culpable  omissions.     Senior,  77;     Mirror,  117;    O'Brien,   120; 

Westrupp,  124;  Marriott,  128;  Pocock.  131. 
in  testifying,  whether  perjury.  Moore,  593  n. 
concurrent     Benge,  339;    Eisenhower,  345  n. 

NIGHTWALKING, 

whether  indictable.    32  n. 

NOISES, 

unlawful.     Smith,  22. 

NUISANCE, 

noises  as.     Smith,  22. 

keeping  explosive.     Taylor,  26. 

exposing  infected  person.     Vantandillo,  26. 

obstructing  navigable  river.     26  n. 

obstructing  highway.     26  n. 

OBSCENITY, 

public,  whether  indictable.     Bell,  30. 

OBSTRUCTING  OFFICERS,  17  n. 

OFFICE, 

refusing  to  accept,  whether  indictable.     Greene,  4. 
abuse  of,  whether  indictable.     Williams,  14. 

OFFICERS,  see  Arrest. 

OWNERSHIP, 

necessary  to  larceny.    Haynes,  400. 

what  is.  in  larceny.     Anon..  400;    Ward,  401;    Anon.,  402;    Henry,  402; 
Bramley,  407;    Willis,  408. 

PERJURY, 

what  is.     Cnut,  502;    Coke,  592. 

whether  knowledge  of  falsity  of  oath  necessary.     Moore,  593  n. 

whether  authority  to  administer  oath  necessary.    Custodes  v.  Gwinn,  592. 

by  swearing  truly.     Gurneis,  593. 

materiality  of  oath.     Ilattaway.  593;    Tyson,  596. 

"course  of  justice,"  what  is.     Arden,  594. 

PLEDGING   PROPERTY, 

of  another,  whether  larceny.     Wright,  489;  Phetheon,  4S9  n. ;  Trebilcock, 
489  n. 

POSSESSION, 

what  is.     Hehir,  453  ;    Wiley,  545. 

of  trespassers.    Townley,  393;  Foley,  396  n. ;  Steimling,  397;  While,  426. 
of  thief     Anon.,  400;    Ward,  401. 

as  between   master  and  servant     Dingley,  416;   Bull.   418;   Snllens,  -11!); 
Masters,  420;    Reed,  422;    Reporter's  Note,  403;    Paradice,  464;    Saw 
.nil,  468;    Montarlal,  469;    Gruncell,  539. 
wh.it  preliminary,  necessary  In  larceny.    Dingley,  410  et  seq. 
of  property  delivered  by  mistake.     Hehir,    ir>;;;    A.shwell,  456  o. 
(listing  lion  between  custody  and.     Reporter's  Note,    163  el   seq. 

PREVENTION  OF  CRIMES, 

what  ton-.-  may  be  used  in.    Leonin,  225;    Howell,  234;    storey,  234. 
s«'<-,  also,  Defense. 

PRINCIPALS, 

who  are.    Hale,  262;    Dade,  263;    Jeffries,  265, 

when  innocent  agenl  employed.     Manley,  262. 

in  second  degree,  who  are.    Griffith,  •_*< ;< ; ;    Banson  v.  Ossley,  267;  Thorn 

ton,  2f,7 ;    Ramon,  268  n. 
constructive  presence.     Poynier,  269. 


INDEX.  609 

[The  figures  refer  to  pages.] 

PRINCIPALS— Continued, 

whether  mere  presence  makes.    Thornton,  207. 

liability  as,  for  acts  growing  out  of  common  design.  Mercersmith,  273  . 
Allen,  276. 

liability  for  acta  of  agent     Stevens,  2S8. 
PRISON  BREATH,  17  n. 

PRIVILEGED  COMMUNICATIONS,  see  Libel. 
PROOF, 

of  cooling  time.     Hill,  371;    McCants,  373. 

PROVOCATION, 

whether  words  can  be.    Mawgridge,  3G7 ;  Spivey,  375  n. :  Grugin,  376. 

effect  of  drunkenness  in  heightening.     Thomas,  169;    Keenan,  170. 

insulting  gestures  as.     Mawgridge,  367. 

trespass  as.     Mawgridge,  3<;7. 

assault  as.     Mawgridge,  367. 

restraint  of  liberty  as.     Mawgridge,  367. 

adultery  as.     Mawgridge,  367;    Grugin,  376;    Yanz,  382. 

excessive  violence  as.     Hill,  371. 

blow  by  woman  as.     Mosler,  375  n. 

rape  as.     Grugin,  376. 

effect  of  mistake  as  to  cause  of.     Yanz,  3S2. 

RAPE. 

what  is.     Bracton,  319. 

effect  of  consent  in.     Reginald,  320;    Don  Moran,  320. 

when  consent  obtained  by  fraud.     Don  Moran,  320;    Flattery,  326. 

on  imbecile.     Don  Moran,  320,  321  n. 

on  child.    W.  D.,  319. 

punishment  of.     Bracton,  319;    Stat.,  319,  320  n. 

on  unconscious  woman.     Don  Moran,  320. 

by  personating  husband.    Don  Moran,  320,  324  n. 

meaning  of  "force"  in.     Don  Moran,  320. 

resistance  necessary.     Shields,  326  n. 

incapacity  to  commit.     Waite,  326  n ;    Coleman,  326  n. 

by  husband  on  wife.     Haines,  327;    Frazier,  327  n. 

when  complete.    326  n. 

as  provocation  in  homicide.     Grugin,  376. 

RECEIVING   STOLEN  PROPERTY, 

made  substantive  crime.    East,  537;  Streeter.  543. 

character  of  the  property  received.  Jaffe,  198;  Kenny,  405;  Dyer,  538; 
Gruncell,  539;  Schmidt,  539;  Streeter,  543. 

form  of  the  property  received.     Cowell,  537. 

distinction  between  receiver  and  accessory.     Dyer,  538;    Gruncell,  539. 

what  acts  constitute  receipt.  Wiley,  545;  Woodward,  546;  Sinclair, 
546  n. 

guilty  knowledge,  what  is.     Frank,  548;    Caveness,  548. 

guilty  knowledge  must  exist  at  time  of  receipt.  Woodward,  546;  Cave- 
ness, 548. 

intent,  what  sufficient  Caveness,  548;  Davis,  549;  Wiley,  550;  John- 
son, 549  n. 

receiving  for  owner.    Wiley,  550. 

RELIGION, 

offenses  against    Tayler,  20. 

RESCUE, 

whether  indictable.     17  n. 

RIOT, 

indictable.     Morrison,  13. 
what  is.     Hawkins,  22  n. 
inciting  to.     Haines,  21. 
Mik.Cr.L.— 39 


610  INDEX. 

[The  figures  refer  to  pages.] 

ROBBERY, 

what  is.    Bracton,  500. 

by  taking  from  presence.     Wright,  501;    Hill,  503. 

violence  in.     Davies,  501;    John,  501  n. 

violence  in,  must  precede  taking.     Harman,  501. 

by  menaces.     Hughes,  502. 

by  threat  to  accuse  of  crime.     Edward,  502;    Thompson,  502  n. 

SCANDALOUS  WORDS. 

when  indictable.     Darby.  13. 

SCOLD, 

punishment  of.     James,  6. 

SODOMY, 

is  indictable.     32  n. 

SOLICITATION, 

when  indictable.     Bacon,  1SS;    Higgins,  189;    Hutchinson,  190. 

SOMNAMBULISM,  Fain,  168  n. 

STATE, 

consent  by,  see  Consent. 

STATUTES, 

as  to  intent,  see  Intent. 

SUBMISSION,  Day,  40  n. 

SUICIDE, 

what  is.     Haickins,  328. 

murder  in  attempting.    Levelle,  359. 

THEFTBOTE, 

what  is.     East,  537. 

THREATS,  see  Coercion. 

TRADE, 

offenses  against.    Powell,  27;    Middleton,  28. 

TREASON, 

petit,  what  is.     Blackstone,  350. 
coercion  as  a  defense.     McCarty,  65. 

TRAITOR, 

drinking  health  of,  indictable.     Anon.,  13. 

TRESPASS, 

whether  retroactive.     Milton,  186. 
as  provocation  in  homicide.     Mawgridge,  367. 
necessary  to  larceny.     Hawkins,  416. 

continuing  trespasa    White,  426;    Butler,  430;    Stinson,  430. 
see  Larceny. 

UNLAWFUL  ASSEMBLY, 
what  is.     22  n. 

VESSEL, 

larceny  from.     Madox.  440. 

WATER, 

whether  selling  unwholesome,  Is  Indictable.    27  n. 

WITNESS, 

whether  preventing  attendance  of,  is  Indictable.     17  n. 


i  |  iii.jMll.sv   00.,   I'KIVI  l.lts,   *T.  PAUL,    MIN.t, 


pa, 


LAW  LFBRART 

UNIVERSITY  OF  CALIFORNIA 

L(KS  ANG£L£S 


UC  SOI 


JTHERN  REGIONAL  LIBRARY  FACILITY 


II    II    MM 

AA    000  682  602    8 


